Bolich v. Prudential Ins. Co. of America

• Decision Date: 15 June 1932
• Docket Number: 862.
• Parties: 202 N.C. 789, 82 A.L.R. 974 v. PRUDENTIAL INS. CO. OF AMERICA et al. BOLICH et ux.
• Court: North Carolina Supreme Court

164 S.E. 335

202 N.C. 789, 82 A.L.R. 974

BOLICH et ux. v. PRUDENTIAL INS. CO. OF AMERICA et al.

No. 862.

Supreme Court of North Carolina

June 15, 1932

Appeal from Superior Court, Forsyth County; Harding, Judge.

Action by J. A. Bolich, Jr., and wife against the Prudential Insurance Company of America and others. From the judgment plaintiffs and defendants Nona S. Hanes and the Bolich Holding Corporation appeal.

Affirmed.

Even if property is in custodia legis, court of equity has power, in its discretion, to order sale under power of sale in trust deed.

On or about March 11, 1930, J. A. Bolich and wife, being the owners of a certain lot of land in Winston-Salem, borrowed the sum of $160,000 from the defendant insurance company, and as security therefor executed and delivered a deed of trust to the defendant Wachovia Bank & Trust Company, trustee. Thereafter, on or about November 20, 1930, Bolich and wife made a certain contract with W. M. Hanes and wife, Nona S. Hanes, in which they agreed "to pay, renew or handle in a manner satisfactory to both parties each and every encumbrance against said property as the same came due." Thereupon, Bolich and wife conveyed the property to a corporation known as the Bolich Holding Corporation. Default was made in the payment of the indebtedness, and the holder of the note requested the trustee named in the deed of trust to sell the property, and same was duly advertised for sale on November 20, 1931. A temporary restraining order was issued, answers were filed by the parties, a receiver was appointed by the Bolich Holding Corporation, and at the final hearing the trial judge continued the injunction to the hearing, but decreed a foreclosure of the deed of trust and appointed a commissioner to sell the land for the reason that "the court is of the opinion that the parties opposed to said motion and sale have not alleged any equity or reason why said motion should not be allowed," etc. The plaintiff prayed the court to restrain the sale upon the ground that "there was a condition of depression throughout the entire country in finance and real estate, and business conditions generally were unprecedently bad, which conditions continue to exist at the present time; *** that on account of the scarcity of money and poor market conditions, it was impossible to obtain the fair market value of lands at a judicial foreclosure or other forced or involuntary sale of same. *** That if the lands are sold *** at a forced sale at the present time, they will not bring their fair market value, and will do irreparable damage both to the plaintiffs and to the creditors of the Bolich Holding Corporation; that a delay for a reasonable time in foreclosing the deed of trust will do the defendants no damage, for the reason that the loan is more than adequately secured; *** that there are many indications that in a short time business conditions will have improved to such an extent that money will be available and property can be sold even at a forced sale at approximately its market value." The second ground upon which the plaintiffs requested postponement of sale was that the defendant Nona S. Hanes had contracted to pay off the mortgage indebtedness, and that, while she was solvent, had declined and refused to comply with her agreement.

From the judgment rendered, the plaintiffs and the defendants Nona S. Hanes and Bolich Holding Corporation appealed. Pending the appeal the trial judge restrained the commissioner from proceeding with the sale.

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