Atkins v. Crumpler

• Decision Date: 16 March 1897
• Citation: 120 N.C. 308,26 S.E. 912
• Parties: ATKINS. v. CRUMPLER et al.
• Court: North Carolina Supreme Court

26 S.E. 912

120 N.C. 308

ATKINS.

v.CRUMPLER et al.

Supreme Court of North Carolina.

March 16, 1897.

Mortgage—Power of Sale—Who mat Execute.

An assignment of ail the assets of a loan association by the cashier to his successor does not authorize the latter to execute a power of sale in a mortgage made to the assignor, as cashier; and a purchaser at such sale becomes merely the equitable mortgagee.

Petition for rehearing. Dismissed.

For original opinion, see 24 S. E. 367.

FURCHES, J. This is a petition to rehear, and to have the opinion of the court at spring term, 1896 (118 N. C. 532, 24 S. E. 367), reviewed.

The first assignment of error In the petition is that the court stated that the plain tiff, according to his contention, bought the land mentioned in the pleadings at a sale made by T. J. Lee, under the powers of sale contained in a mortgage to T. M. Lee, after the death of the said T. M. Lee, which petitioner says: "Upon the contrary, it appears is not true." In reply to this assignment of error, we quote the first paragraph of the plaintiff's replication to the defendants' answer: "The plaintiff, replying to the matters of fact set out in the answer, alleges (1) that in 1870 these defendants made a mortgage deed of their interest in the land described in the complaint to one T. M. Lee, who died, and his executor, A. M. Lee, sold the same, to satisfy the balance due on said debt, so secured as aforesaid, and plaintiff became the purchaser, and took deed." This paragraph of the plaintiff's replication would seem to be a sufficient answer to the first assignment of error in the petition; but there is one error in the opinion of the court, as published. It speaks of this mortgage as only passing "seven-tenths" of the estate of Irwin Owens, if it had been properly foreclosed, whereas it should have been "four-tenths, " as it was written in the opinion of the court, but, by inadvertence, was published "seven-tenths."

The second assignment of error In the petition to rehear is based on an alleged erroneous statement of a fact appearing in the record, —that the court, in the opinion heretofore rendered (118 N. C. 532, 24 S. E. 367), states that the deed from A. F. Johnson to W. L. Faison did not appear in the transcript of record. We find that this allegation of the petition is not true in fact, as the published opinion of the court will show. The court does say that the alleged deed from Faison to the plaintiff does not appear in the transcript of record, and this statement of the court is true. But, according to the principles governing this case, it is not material as to whether the deed of assignment from Johnson to Faison was in the transcript or not. It is given the same consideration in the former opinion of this court that we are compelled to give it now, —that it did not authorize Faison, the assignee of Johnson, to foreclose the mortgage of defendants to the Clinton Loan Association; and, if the plaintiff was the purchaser at such sale, it only had the effect of making him the equitable mortgagee, instead of Johnson. Dameron v. Eskridge, 104 N. C. 621, 10 S. E. 700.

The plaintiff admits that, after he bought at the Lee mortgage sale, he sold to four of the defendants, and took their note for $640, at 12 1/2 per cent. interest, and gave them a bond to make them a good and Indefeasible title to the whole tract, with full covenants, upon the payment of the $640 note. The defendants deny his power to do this, and it is our opinion, from the statement of the facts in the case before us, that he could not. Butthis sale of plaintiff to defendants, and bond for title, created the relation of mortgagor and mortgagee. Ellis v. Hussey, 66 N. C. 501; Allen v. Taylor, 96 N. C. 41, 1 S. E. 462. But this relation, once existing between the parties, continued to exist until this note was paid and the deed...