116 S.E. 424 | N.C. | 1923
Civil action to recover possession of a house and tract of land under claim of ownership by reason of a purchase at foreclosure sale, and for judgment for deficiency in purchase price.
There were facts in evidence on part of plaintiff tending to show that on 1 September, 1920, plaintiff sold and conveyed to defendants the house and land in controversy for $5,600, to be paid at the rates of $100 per month, with accrued interest, notes being given for these amounts respectively, and at said date the grantees executed a deed of trust to D. B. Teague to secure payment of said notes with power of sale on default, said instrument containing provision that the entire debt would mature on failure of payment of any installment of purchase price and interest thereon, or any part of same. That defendant met the payments as per contract till 1 March, 1921, and default being thereafter made, the trustee, at plaintiff's instance, sold said land after due advertisement, *208 when one C. A. Godfrey became the last and highest bidder, at $4,525. that within ten days, an increase having been made and paid to the clerk by one D. L. St. Clair, a resale was ordered under C.S. 2591, and at said second sale the property was bid off by one P. L. Johnston at $4,775, and that bid having been duly assigned to plaintiff, the trustee conveyed the property to said plaintiff, and after crediting the purchase money notes with amount of bid, there was a balance due plaintiff of $437.20.
There was further evidence to the effect that defendant has been in the continuous possession of the property and refuses to surrender same to plaintiff, and on these, the principal allegations of the complaint, with supporting evidence, plaintiff seeks to recover possession of the property and balance due on the purchase money.
Defendant denied that there had been any regular or valid foreclosure of the deed of trust, and offered evidence tending to show that no report of the second sale had ever been made to the clerk of the Superior Court, and no order entered by him that the trustee make the deed to plaintiff under which he claims title.
Defendant alleged further, and offered evidence tending to show, that on or after 1 March, 1921, the time of the alleged default, defendant having paid $500 of the purchase price with maturing interest, and having made permanent improvements on the property to the (198) amount of $1,200, plaintiff and defendants came to an agreement to cancel the trade under conditions as then presented, plaintiff to surrender the unpaid purchase-money notes, amounting to $5,100, and defendant to give up the property, losing thereby the $500 already paid and the improvements put upon the place. That plaintiff being advised by counsel that in order to bar defendants of any further claim or equity in the property, it was advisable and perhaps necessary that a foreclosure be had, defendant agreed to make no objection or resistance thereto, and plaintiff could take such steps as were required to assure his title. That defendant was ready and willing to carry out his part of the agreement above set forth, and had moved a part of his property from the place when ascertaining that plaintiff would not surrender the purchase-money notes, and was to insist on a deficiency judgment, defendant refused to vacate the property, and has since been in possession of the same. On these, the opposing positions and evidence of the parties, the cause was submitted to the jury, and verdict rendered by them as follows:
"1. Was the deed of trust foreclosed as provided by law? Answer: `No.'
"2. Is the plaintiff the owner and entitled to possession of the lands *209 described in the complaint? Answer: `No.'
"3. What is the monthly rental value of said land? Answer: `$30 per month.'
"4. Did plaintiff agree to cancel and surrender the notes of defendants' as alleged? Answer: `Yes.'"
Judgment was entered that defendants go without day without prejudice to plaintiff's rights of forclosure as provided by law and the contract of the parties. Plaintiff excepted and appealed.
In C.S. 2591, provision is made for increase of bids and resale of property where there has been a foreclosure under a power of sale contained in a mortgage, deed of trust, etc., and in case of sales by executors, administrators, or others under a power conferred by a will. In the case of In re Sermon's Land,
"That the clerk shall not only be paid the amount of the increased bid, but if there is any doubt of the solvency and promptness of the bidder, a bond may be required in security of the bid."
"Resales may be had as often as the bid may be raised in compliance with the section."
"Upon the final sale, the clerk shall have power to order that title be made to the purchaser, he may make such orders as may be just and necessary to safeguard the rights of the parties, and he shall keep a record which will show in detail the amount of each bid, the purchase price, and the final settlement, etc., etc." *210
And the recent case of Pringle v. Loan Assn.,
We think, therefore, his Honor correctly ruled that for want of a report to the clerk of the last sale, and an order by that officer to the trustee to make title, there has not been a regular and completed foreclosure, and these facts having been found by the jury, the first issue was properly answered against the plaintiff.
There is doubt, however, of the correctness of the second ruling of his Honor that in case the first issue should be answered "No," they should also answer the second issue "No." From a perusal of the statute and the decisions apposite, In re Sermons, supra, and Pringle v. Loan Assn.,supra, it will appear that even after the right of supervision has arisen to the clerk by virtue of an increased bid, that officer's powers in the premises are not those of general control, as in case of an ordinary judicial sale. As said in Sermon's case, supra, the stipulations of the mortgage, etc., and the contract rights of the parties, are not to be interfered with except and to the extent that the statute expressly provides. The clerk's powers are only to see that on an increased bid, and as often as they are made, a resale shall be had, and on final sale a deed shall be made to the purchaser, and he may make such orders as may be just and necessary to that end, and where it appears as in this case, that there was no further increase of the bid, and without orders of the clerk the parties have of their own motion proceeded to do the only thing the clerk could have ordered, as now advised, we see no reason why, so far as the second issue is concerned, this merely ministerial duty of the clerk should not have been presently performed and supplied by (200) action nunc pro tunc, and the plaintiff allowed a verdict on the issue as on a perfected claim.
On the record, we find it unnecessary to make definite decision on this question, for the verdict on the second issue is not found as a distinct and substantive fact, but only as a conclusion of law from his Honor's ruling and the finding of the jury on the first issue, and, regardless of the verdict on these two first issues, we are of opinion that the verdict on the third and fourth issues establishes facts which permit and require that the court make final disposition of the rights of the parties involved in the controversy.
In this jurisdiction, and others basing their system of jurisprudence on common-law principles, a judgment is but the conclusion that the law makes upon the facts admitted or authoritatively established in the course of a properly constituted suit, and where in such a proceedings the ultimate facts have been so ascertained and declared, the correct *211
judgment must follow and be entered thereon as of right. Beard v. Hall,
In Beard's case, supra, the principle adverted to is stated as follows: "A judgment is the legal conclusion upon facts found or admitted by the parties in the course of the action to which the party is entitled as a matter of course as soon as the facts are so established. This is the rule of the common law, and we have found no statute enacting otherwise," citing 2 Tidd's Practice, p. 932; 2d Daniels' Chancery, par. 1017; Davies v.Davies, 9 Vesey, p. 46; Campbell v. Mesier, 4 Johnston, p. 341.
Referring to the pertinent issues in view of these principles, and interpreting the same in reference to the pleadings, the evidence and the charge of the court, the appropriate and approved method with us, Reynoldsv. Express Co.,
True, the exact time of the surrender of possession is not fixed by the verdict, but the evidence of the defendant is to the effect that the cancellation was to go into effect not long after 1 March, 1921, and the evidence of plaintiff fixes the time for surrender of possession to plaintiff on 1 September, 1921. There is practically no substantial conflict between the parties on the issue of cancellation, the evidence showing that after they had entered on performance, the surrender of possession was interrupted by some nonessential occurrence, (201) indicating that the parties, one or both of them, were in a sensitive mood and easy to take offense, but nothing occurred to justify a destruction or modification of the agreement to cancel.
Under the authorities, and in the absense [absence] of fraud and imposition, there was no reason why the parties could not make such an agreement. Jones v. Pullen,
This will be certified that the judgment heretofore rendered be set aside and a new judgment entered in accord with this opinion.
Reversed.
Cited: Swain v. Bonner,
