Carter v. Slocomb

• Decision Date: 05 April 1898
• Citation: 29 S.E. 720,122 N.C. 475
• Court: North Carolina Supreme Court
• Parties: CARTER . v. SLOCOMB et al.

29 S.E. 720

122 N.C. 475

CARTER .

v.SLOCOMB et al.

Supreme Court of North Carolina.

April 5, 1898.

Mortgages—Power of Sale—Death of Mortgagor.

1. A power of sale in a mortgage is not affected by the mortgagor's death.

2. A power of sale in a mortgage may be exercised without notice to heirs of mortgagor after his death.

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

Action by Charles W. Carter, by his next friend, Francis Carter, against A. H. Slocomb and another, to set aside a sale made under a power of sale contained in a mortgage. Judgment for plaintiff, and defendants appeal. Reversed.

J. C. & S. H. MacRae, for appellants.

H. McD. Robinson, for appellee.

FAIRCLOTH, C. J. The sole question presented is whether a sale of land by a mortgagee, under a power of sale In the mortgage, made after the death of the mortgagor, without notice to the heir, conveys a good title; that is, whether at the death of the mortgagor the power of sale ceases and becomes inefficacious. In this state, when a mortgage is executed the mortgagee becomes the legal, and the mortgagor the equitable, owner; and until the day of redemption is past the mortgagor has a legal right, and afterwards an equity, of redemption. Hemphill v. Ross, 66 N. C. 477. No question of fraud enters into the controversy, nor any as to the amount due on the mortgage debt. The mortgagor cannot demand any notice of intention to sell under the power, and the heir at law stands in the place of his ancestor. Carver v. Brady, 104 N. C. 219, 10 S. E. 565; Fraser v. Bean, 96 N. C. 327, 2 S. E. 159. The general rule is that a power ceases with the life of the person giving it, but, where the power is coupled with an interest, it survives the life of the person giving it, and may be executed after his death. By a "power coupled with an interest" is meant an interest in the thing itself; that is to say,-the power must be ingrafted on the estate in the thing, and not on the product of the exercise of the power. Hunt v. Rousmanier's Heirs, 8 Wheat 203. This principle is not affected by any change of circumstances, such as the death of the mortgagor. 8 Am. & Eng. Enc. Law, 875; Cranston v. Crane, 93 Am. Dec. 106. "The death of the mortgagor does not revoke a power of sale." 2 Jones, Mortg. g 1792. and cases cited. "In those states where the common-law rule prevails, that such a power is coupled with an interest, the death or bankruptcy of the mortgagor does not revoke or suspend the power of the legal...