Brown v. Sheets

• Decision Date: 22 May 1929
• Docket Number: (No. 356.)
• Citation: 148 S.E. 233
• Court: North Carolina Supreme Court
• Parties: BROWN. v. SHEETS et al.

148 S.E. 233

(197 N. c. 268)

BROWN.

v.SHEETS et al.

(No. 356.)

Supreme Court of North Carolina.

May 22, 1929.

Appeal from Superior Court, Forsyth County; Walter E. Moore, Judge.

Suit by W. E. Brown against C. M. Sheets and others. Judgment for defendants in county court was affirmed, and plaintiff appeals. No error.

This action was tried in the county court of Forsyth county, N. C, before Judge Oscar O. Efird. The following judgment was rendered:

"This cause coming on to be heard, and being heard at the October 15th, 1928, Term of the Forsyth County Court, and neither the plaintiff nor the defendants in their pleadings, having asked for jury trial, and both the plaintiff and the defendants having in open court, through their respective counsel, entered of record consented that a jury should be dispensed with, and that the Judge of the Forsyth County Court should find the facts in the case, and on such findings of fact should enter a judgment in accordance with law, such agreement being made in the presence of all parties to the action, and both the plaintiff and the defendants having introduced evidence, and having argued the case, thereupon the court makes the following findings of fact, such findings of fact being in addition to the formal admissions made by the parties in open court:

"Finding No. 1: The plaintiff, W. L. Brown, through his agent, J. H. Nance, became the last and highest bidder at the foreclosure sale held on September 9, 1925.

"Finding No. 2: Such bid made by the plaintiff, through his agent, J. H. Nance, was made in bad faith, and for the purpose of wrongfully delaying and preventing the foreclosure of the deed of trust, and without intent to comply with the terms of such bid.

"Finding No. 3: The sale held on December 2, 1925, was advertised by the trustee under the order of the Clerk of Superior Court dated October 20, 1925, by the publication of a notice in the Twin-City Sentinel, a newspaper published in Forsyth County, on the 18th and on the 25th days of November, 1925, and also by posting such notices at the court house door and three other public places in Forsyth County for fifteen days prior to such sale, such notice being in due form, and such notice, both as to form and manner of publication, complying with the terms of the order of re-sale of the Clerk of the Superior Court for Forsyth County, dated October 20, 1925. The sale on December 2, 1925, was held on Wednesday, and was the third day of a term of the Superior Court for Forsyth County.

"Finding No. 4: C. M. Sheets, one of the defendants, became the purchaser from Mock and Wiseman, the purchasers at the foreclo-sure sale, of the lands described in the complaint for a valuable consideration ($1,433.66) in good faith, and without knowledge of any irregularities in the foreclosure proceedings.

"Finding No. 5: The defendant, W. G. Lindsay, thereafter became the purchaser from C. M. Sheets of the part of the lands described in the complaint for a valuable consideration, with notice that the foreclosure sale of December 2nd, had been advertised by notices published in the newspaper for only once a week for two weeks preceding the sale; and with notice that the plaintiff claimed the sale and had been irregularly held and that the plaintiff claimed to be the owner of the property; that the said W. G. Lindsay did not in any way participate in the manner or method of advertising such re-sale, or any irregularities connected therewith.

"Finding No. 6: That there was a delay and a postponement, of the re-sale advertised for November 5, 1925, such delay being granted at the request of the plaintiff, and that such delay was not a waiver or condonation of the conduct of the plaintiff in bidding in bad faith at the sale held on September 9, 1925, as set out in findings of fact No. 2.

"Finding No. 7: That the deed of trust under which such property was sold, same being recorded in the Registry of Forsyth County, Book of Deeds of Trust, 176, page 132, secured a note in the sum of $1,007.50, with interest; that the same was past due and unpaid; that at the request of the holders of said note (Mock and Wiseman), the trustee, A. R. Bridgers, duly advertised said property for sale in April, 1925, and thereafter on increased bids being filed with the Clerk of the Superior Court for Forsyth County, several re-sales were duly ordered by said Clerk and duly advertised, and that a re-sale was duly ordered by the Clerk of the Superior Court for Forsyth County to be held on September 9, 1925, and such sale was duly advertised. And, that as a matter of law, all proceedings were regular up to and through the sale of September 9, 1925, except as appears in the second finding of fact above.

"The above findings of fact cover all issues raised by the pleadings or tendered by either party to the action, except the issues tendered by defendant, Lindsay, relating to betterments.

"On such findings of fact, the court orders, adjudges and decrees, that the plaintiff take nothing by his action, and that the same be dismissed, and the costs be taxed against the plaintiff;

"Further, that the court orders, adjudges and decrees that the title of C. M. Sheets and W. G. Lindsay in and to the lands described in the complaint is good, and that the plaintiff, W. L. Brown, has no right, title, interest or estate whatsoever in or to said lands; that all claims of the said W. L. Brown in or to such lands are hereby adjudicated and resolved against him, and that insofar as the said W. L. Brown is concerned the title and estate of the said defendants under their respective deeds referred to above are hereby quieted and declared to be valid."

Numerous exceptions and assignments of error were made, and on appeal to the superior court the following judgment was rendered: "This cause coming on to be heard before His Honor, Walter E. Moore, Judge, on appeal from the Forsyth County Court, from a judgment in favor of the defendants, and the Court having heard argument of counsel and having considered the exceptions of the plaintiff as appear in the record and having found that none of the exceptions of the plaintiff constitute reversible error and that the judgment of the Forsyth County Court should be affirmed; it is, therefore, ordered, adjudged and decreed that each and every one of the exceptions of plaintiff are overruled and the judgment of the Forsyth County Court is hereby affirmed; and it is ordered that the action be remanded to the Forsyth County Court for disposition in accordance with this judgment and that the costs of the appeal be taxed against the plaintiff."

From this judgment the plaintiff, appellant, made numerous exceptions and assignments of error and appealed to the Supreme Court.

Richmond Rucker and John J. Ingle, both of Winston-Salem, for appellant.

Parrish & Deal and W. T. Wilson, all of Winston-Salem, for appellees.

CLARKSON, J. The main and material question: Plaintiff, appellant, excepts and assigns error to the refusal of the court to grant the plaintiff's motion for judgment on the pleadings: "The appellant contends that judgment for the plaintiff on the pleadings should have been granted for the reason that the answer and further defense clearly show that the sale under foreclosure was irregular and that from the records incorporated by reference in their pleadings the defendants had notice or acted in bad faith in acquiring the property." We cannot so hold. The record discloses that the court below found the facts to the contrary, and there was sufficient evidence to sustain the findings. In the matter of Southern Ry. Co. Assessment for Paving on Railroad Street, Kernersville, 196 N. C. at pages 758, 759, 147 S. E. 301.

Chapter 520, Public-Local Laws of 1915, § 3(a), the act establishing the Forsyth county court, provides: "That in the trial of civil cases in said court either the plaintiff at the time of filing the complaint or the defendant at the time of filing the answer may in his pleadings demand and have a jury trial as provided in the trial of causes in the Superior Court; that failure to demand a jury trial at the time herein provided shall be deemed a waiver of the right to a trial by jury; that the judge of said court, when inhis...