Cherry v. Gilliam
| Decision Date | 29 February 1928 |
| Docket Number | 93. |
| Citation | 141 S.E. 594,195 N.C. 233 |
| Parties | CHERRY v. GILLIAM et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Bertie County; Clayton Moore, Special Judge.
Action by Annie L. Cherry against John B. Gilliam and wife. Judgment for defendants, and plaintiff appeals. Affirmed.
Craig & Pritchett, of Windsor, for appellant.
Gillam & Spruill, of Windsor, for appellees.
W. T Cherry and James S. Cherry owned a tract of land as tenants in common. On February 4, 1922, W. T. Cherry and his wife executed and delivered to R. L. Spruill a mortgage deed conveying their undivided interest therein to secure a note held by the mortgagee. Spruill transferred the note and mortgage to John B. Gilliam, one of the defendants, and upon the mortgagors' default in payment Gilliam requested Spruill to sell the land under the power contained in the mortgage. The sale was made on February 2, 1923, and the plaintiff became the last and highest bidder at the price of $355, subject to the provisions of C. S. § 2591. Before the expiration of ten days from the time of the sale the mortgagors conveyed to Sallie B. Gilliam all their interest and estate in the mortgaged premises. The plaintiff alleges that this conveyance was procured by the grantee's husband with intent to defeat "her rights acquired in and to the said property by virtue of bidding the same off at the public sale"; but the defendants say that before the expiration of the statutory limitation Mrs. Gilliam purchased the land for a valuable and adequate consideration and paid the amount due on the mortgage together with the expenses incurred in making the sale, and thereby became the owner in fee of the land in question. It is furthermore alleged that after the ten days had expired the plaintiff tendered to John B. Gilliam the amount of her bid and demanded of him the execution of a deed, and that he has refused to comply with her demand. The trial judge, being of opinion that the plaintiff was not entitled to recover rendered judgment in favor of the defendants, and the plaintiff excepted and appealed.
It is provided in section 2591 that in the foreclosure of mortgages the sale shall not be deemed to be closed under ten days, and if within this time an increased bid is paid to the clerk the mortgagee, by order of the clerk, shall reopen the sale advertise the property as in the first instance, and make a resale; and that upon the final sale the clerk shall issue an order to the mortgagee to make title to the purchaser. It has been held with respect to this statute that it was enacted for the protection of mortgagors when sales are made under a power of sale without a decree of foreclosure by the court that it confers no power on the clerk to make any...
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