Bobbitt v. Stanton

• Decision Date: 16 March 1897
• Citation: 26 S.E. 817,120 N.C. 253
• Parties: BOBBITT v. STANTON et al.
• Court: North Carolina Supreme Court

26 S.E. 817

120 N.C. 253

BOBBITT v. STANTON et al.

Supreme Court of North Carolina

March 16, 1897

Appeal from superior court, Granville county; Mclver, Judge.

Action by A. E. Bobbit against George Blackwell to recover possession of land, to which J. G. Stanton was made a party defendant after answer by defendant Blackwell. From the judgment, defendant Stanton appeals. Affirmed.

In an action by a purchaser at mortgage sale against the mortgagor for possession, defendant pleaded payment of the mortgage debt before foreclosure. The mortgagee was made a defendant and he alleged the validity of the sale, and asked for an apportionment of the proceeds. Held, that the court could adjust the equities between the defendants, and, on giving judgment for plaintiff, render judgment in favor of the mortgagor against the mortgagee for the surplus in his hands.

Shaw & Shaw and N.Y. Gulley, for appellant.

A. J Field, for appellee.

DOUGLAS J.

This action was originally brought by the plaintiff against the defendant Blackwell alone to recover possession of land sold under a mortgage executed by said Blackwell to the defendant J. G. Stanton, and purchased by the plaintiff. The defendant Blackwell alleged in his answer that the mortgage debt was usurious, and had been fully paid to Stanton, and that the sale was, therefore, void. Stanton was made a defendant, and filed his answer, denying the material allegations of Blackwell's answer, and alleging that his debt had not been paid; that the sale under the mortgage was in all respects regular and valid; that the land sold for $280, from which he paid the remainder of his debt ($102.71), the expenses of sale, and $87.90 due on a former mortgage given by Blackwell to one A. J. Harris; that he still had in his hands a surplus of $85.39, belonging to Blackwell, which he was ready and willing to pay to "Blackwell, or to any one whom the court may direct." The mortgage to Harris was a first lien on the land, existing when the land was sold by Stanton. It then belonged to Harris, and was not conveyed to Stanton until after the sale of the land. All the issues were found in favor of the plaintiff. His honor, Judge Coble then presiding, refused to sign the judgment as asked by Stanton, but gave judgment for the plaintiff for the possession of the land, for $40 annually for the wrongful possession of the land, and for the plaintiff's cost in the action; and made an order directing that the question of the application of the money be continued to the next term of court. At the next term the matter of application of the proceeds arising from, the sale came up to be tried before Judge McIver, and by agreement of counsel a jury trial was waived, and his honor found the facts, and rendered the following judgment: "It is adjudged that defendant Blackwell recover of defendant Stanton mortgagee in Blackwell's mortgage of April 16, 1891 (the second mortgage), the sum of $189.67, with interest on $173.29 principal from July 27, 1896, till paid, together with costs of action accruing between Blackwell and Stanton since April term, 1896." From this judgment the defendant Stanton appealed.

We see no error in the judgment. The plaintiff, Bobbitt, sued only for the possession of the land, with damages for its detention; and that he obtained. As the land was sold by Stanton under a second mortgage, subject to a prior mortgage Bobbitt purchased only an equity of redemption; that is, the right to redeem the land by paying off the first mortgage. This right is in no way interfered with by the judgment, and in fact judgment had previously been rendered for the plaintiff in full accordance with his prayer. Stanton was not compelled to pay off the first mortgage to protect himself, because he had already sold the land, subject to the first mortgage, for much more than enough to pay his debt. "A voluntary payment by a mortgagee of claims against the mortgaged property, which it was not necessary for his own protection he should pay, does not entitle him to be subrogated to the rights of the creditors whose liens he has discharged." Jones, Mortg. (5th Ed.) § 878. In Kornegay v. Spicer, 76 N.C. 96, Pearson, C.J., says: "A mortgagee with a power of sale is a trustee, in the first place, to secure the payment of the debt secured by the mortgage, and, in the second place, for the mortgagor as to the excess." In Vick v. Smith, 83 N.C. 80, it was held that the mortgagee holds the proceeds of sale as a trustee, and, after paying his secured debt, must pay the surplus to the mortgagor, even though he may hold another unsecured debt. In this case, Stanton, holding the surplus as trustee for Blackwell, cannot be permitted, at Blackwell's expense, to exonerate the land in favor of...