Barbee v. Edwards, 740

• Court: United States State Supreme Court of North Carolina
• Citation: 77 S.E.2d 646,238 N.C. 215
• Docket Number: No. 740,740
• Parties: BARBEE, v. EDWARDS.
• Decision Date: 23 September 1953

Page 646

77 S.E.2d 646 238 N.C. 215 BARBEE,
v.
EDWARDS. No. 740 Supreme Court of North Carolina. Sept. 23, 1953

W. J. Brogden, Jr., and Blackwell M. Brogden, Durham, for plaintiff, appellant.

Spears & Hall, Durham, for defendant, appellee.

JOHNSTON, Justice.

The general rule is that where a mortgage or deed of trust is given to secure a specific debt, payment of the debt extinguishes the power of sale and terminates the title of the mortgagee or trustee, and all outstanding interests in the land revert immediately to the mortgagor by operation of law. Crook v. Warren, 212 N.C. 93, 192 S.E. 684; Saleeby v. Brown, 190 N.C. 138, 129 S.E. 424; Stevens v. Turlington, [238 N.C. 219] 186 N.C. 191, 119 S.E. 210, 32 A.L.R. 870; Walker v. Mebane, 90 N.C. 259; 59 C.J.S., Mortgages, § 550, page 887; 59 C.J.S., Mortgages, § 453, pages 708 and 709; 36 Am.jur., Mortgages, Sec. 413, p. 894.

And ordinarily a sale conducted under the power after full payment of the debt is invalid and ineffectual to convey title to the purchaser. Crook v. Warren, supra; Fleming v. Barden, 126 N.C. 450, at page 457, 36 S.E. 17, 53 L.R.A. 316; 59 C.J.S., Mortgages. § 594, page 1024; 37 Am.Jur., Mortgages, Sec. 803; Annotations: 19 Am.St.Rep. 274; 92 Am.St.Rep. 597, 598. See also Layden v. Layden, 228 N.C. 5, 44 S.E.2d 340; Oliver v. Piner, 224 N.C. 215, 29 S.E.2d 690.

In the case at hand the plaintiff testified: 'I paid to Mr. Lindsey all the money that I agreed to pay on the property.' This testimony is sufficient, when considered with the rest of the evidence in the case, to justify, though not necessarily to impel, the inference that the debt secured by the deed of trust was fully paid before, rather than after, the trustee's deed was made to Lindsey in 1945. This by virtue of the presumption, shown by human experience, that in the ordinary course of affairs a rational person does not 'lock the stable door after the steed is stolen.' And if the debt was so paid, it necessarily follows that the trustee's deed made to Lindsey in 1945, more than seventeen years after the alleged foreclosure sale, is void. And on the record as presented the deed to Lindsey controls the validity of the subsequent deed made by Hiatt to the defendant under the doctrine of title by estoppel. Therefore, if the trustee's deed fails, so does the defendant's. And it is to remove these two deeds and put to rest the defendant's claim made thereunder, as an alleged cloud on the plaintiff's title, that this action is brought.

It necessarily follows that the plaintiff made out a prima facie case entitling him to go to the jury. See Combs v. Porter, 231 N.C. 585, 58 S.E.2d 100, and cases cited.

In this view of the case we do not reach for decision the question whether, conceding that the plaintiff was in default at the times when the foreclosure sale and the trustee's deed were made, his surrender

Page 650

of possession to Weaver tolled the statute of limitations against foreclosure so as to give legal validity to the trustee's deed made some seventeen years after the foreclosure sale. See Ownbey v. Parkway Properties, 222 N.C. 54, 21 S.E.2d 900; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Woodlief v. Wester, 136 N.C. 162, 48 S.E. 578.

We have given consideration to the other pleas of limitation set up by the defendant under various statutes, but conclude that on this record none of them may be invoked at the nonsuit level to defeat the plaintiff's prima facie case.

In reaching this conclusion we have not overlooked the rule which obtains with us that, except when a statute is relied upon to confer title [238 N.C. 220] to land where the defendant must make good his asserted title to defeat the plaintiff's title when proved, Blue Ridge Land Co. v. Floyd, 171 N.C. 543, 88 S.E. 862, where the statute of limitations is properly pleaded, the burden of proof is upon the plaintiff to show that his claim is not barred. The rationale of this rule is that when the statute is pleaded, it is then incumbent upon the plaintiff to show he has not brought to court a stale claim. Muse v. Muse, 236 N.C. 182, 72 S.E.2d 431; Rankin v. Oates, 183 N.C. 517, 112 S.E. 32; Pinnix v. Smithdeal, 182 N.C. 410, 109 S.E. 265; Tillery v. Whiteville Lumber Co., 172 N.C. 296, 90 S.E. 196.

In the light of the foregoing principles we discuss the statutes relied on by the defendant.

As to...