Biggs v. Oxendine
| Decision Date | 28 January 1935 |
| Docket Number | 692. |
| Citation | 178 S.E. 216,207 N.C. 601 |
| Parties | BIGGS v. OXENDINE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Robeson County; Cranmer, Judge.
Action by K. M. Biggs, trustee, against Walter L. Oxendine. Judgment for plaintiff, and defendant appeals.
Affirmed.
Recital in deed from trustee that notice of sale under deed of trust was published in R. newspaper held not to invalidate deed because notice was not published in such newspaper if notice was duly published in a newspaper as required by law.
J. H Hagen and wife were indebted to I. P. Graham and wife in the sum of $357.75. On May 28, 1927, the said Hagen and wife executed a promissory note for said indebtedness, due November 1, 1927, and in order to secure the same duly executed and delivered a deed of trust upon the property to E. M. Johnson, trustee, which said deed of trust was duly recorded on May 28, 1927. Default was made in the payment of said indebtedness, and thereafter, to wit, on December 8 1930, E. M. Johnson, trustee, executed and delivered to the plaintiff, K. M. Biggs, trustee, a deed of conveyance for said property. This deed recites the mortgage given by Hagen on May 28, 1927, and the registration thereof in Book 76, p 193, in the office of the register of deeds for Robeson county, and that there was default in the payment of the note secured thereby, and that the lands described therein were "duly advertised for sale by publishing a notice in the Robesonian, a newspaper published in the Town of Lumberton North Carolina, for a period of thirty days and by publishing a notice of said sale at the court house door and three other public places in Robeson County." The deed further recites that pursuant to such notice the lands were duly sold at public auction at the courthouse door on November 24 1930, when and where the plaintiff became the purchaser for the sum of $300, etc. The sale was made under a second deed of trust. Hagen, the grantor in the deed of trust, remained in possession of the land until his death in August, 1933.
On November 25, 1933, the plaintiff brought a suit in ejectment against the defendant, alleging the execution and delivery of the deed of trust and the sale thereunder, together with deed from Johnson, trustee, to the plaintiff, and further alleging that after the death of Hagen, the defendant, "without the knowledge or consent of the plaintiff, entered upon the land * * * and thereafter forbade * * * a tenant of the plaintiff and in possession of said land to continue to use the stables * * * and by threats, commands and acts has interfered with the work of said tenant so that the said tenant has been unable, and is now unable to continue to fulfill and carry out his obligations as tenant," etc. Upon such allegations the plaintiff prayed that he be declared to be the owner and entitled to the possession of the land, etc.
The defendant answered denying that the plaintiff was the owner of the land but admitting that he was in possession thereof. He also denied that the sale under the deed of trust was proper or valid and alleged that there was a written contract between Hagen and the defendant dated May 28, 1927, providing, among other agreements, "that in the event of the death of J. H. Hagen before either of the above mentioned mortgages had been paid in full, or in the event the said J. H. Hagen is unable to pay any installment of principal or interest on either of said mortgages * * * the said fifty-eight acres above mentioned shall become the property of said Walter L. Oxendine," etc. This contract was duly recorded on July 15, 1927.
At the trial, the plaintiff offered the deed of trust from Hagen and wife to Johnson, trustee, and the deed from Johnson, trustee to the plaintiff and rested. The defendant attempted to offer evidence tending to show: (a) That he had no notice of the advertisement of the property. (b) That the same was advertised in the Scottish Chief, a newspaper published in Robeson county, although the deed from the trustee recited that the notice of sale had been published in the Robesonian, a newspaper published in Robeson county. It was admitted by the plaintiff "that the advertisement offered in evidence was published * * * in the Scottish Chief, a newspaper published in Robeson County." (c) That Biggs, the plaintiff, knew about the contract or agreement between...
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