Ferebee v. Sawyer

• Decision Date: 14 October 1914
• Docket Number: (No. 14.)
• Citation: 167 N.C. 199,83 S.E. 17
• Parties: FEREBEE. v. SAWYER et al.
• Court: North Carolina Supreme Court

83 S.E. 17

167 N.C. 199

FEREBEE.

v.SAWYER et al.

(No. 14.)

Supreme Court of North Carolina.

Oct. 14, 1914.

Appeal from Superior Court, Camden County; Cline, Judge.

Action by Miles W. Ferebee against W. E. Sawyer and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Civil action to recover a tract of land tried. Plaintiff claimed title under a deed from Calvin Upton and J. M. C&rtwright, made pursuant to a foreclosure sale, under and by-virtue of a mortgage, with power of sale executed by defendant W. E. Sawyer and wife to plaintiff's grantors, dated December 14, 1909. Defendant resisted recovery on the grounds, set up by answer, that no valid foreclosure of said mortgage had been made, in that the sale was not properly advertised as "provided by the trust or by law"; (2) that the mortgage had never been "proved, executed or acknowledged." In reference to the alleged defective advertisement, it appeared that the sale was originally advertised to take place at the courthouse door on October 17, 1910, and mortgagees, by their agent and attorney, appeared for the purpose of making the sale, when he was stayed by reason of an injunction sued out and served at the instance of one Hinton, who also held a mortgage on the property; that pursuant to the exigencies of the writ, the sale was first postponed for an hour, to enable the agent to examine into the regularity of the process, and then to November 12, and again to November 26, and again to December 10, and finally to December 22, when, the writ of injunction having been dissolved, the sale was had, pursuant to the last notice, and deed made to present plaintiffs, who were purchasers for value at said sale; that the original notices of the sale were, in all respects, full and regular; that, as to the postponed sale, the agent of the mortgagees made a memorandum of such postponed date, at the bottom of the original notice at the courthouse door, and also made announcement of same at the courthouse door, and, as to subsequent notices, memorandum of postponement was made at the bottom of the original notice at the courthouse door, and proclamation of postponement was also made at courthouse door at one or more of the additional postponements. It was further made to appear in evidence that on December 23, 1910, the present defendant, W. E. Sawyer, had instituted an action against the mortgagees, Upton and Cartwright, and filed his complaint, alleging that the mortgage was given to secure the purchase price of a sawmill, bought by complainant of the mortgagors for $2,500 and by reason of the breach of certain binding stipulations incident to the sale, complainant had been damaged in the sum of $3,500. It was further alleged in said complaint, section 8, that the mortgagees "had advertised said lands and attempted to sell the same on December 22, 1910, and said sale was illegal and void because not properly advertised." On the complaint and supporting affidavits, a temporary injunction was obtained restraining the mortgagee from selling or making title pursuant to the sale. Defendants answered, denying any breach of contract on their part, and making further specific averment that the said sale was properly advertised and in all respects regular. The cause was tried on issues as to breaches of the contract stipulations alleged against the mortgagees, defendants, no issue having been tendered as to the regularity of sale, and, on verdict for defendants, it was adjudged that they go without day, etc. In the present trial, on issue submitted, there was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed.

Aydlett & Simpson, of Elizabeth City, for appellants.

Ward & Thompson, of Elizabeth City, for appellee.

HOKE, J. (after stating the facts as above). [1-3] In foreclosure proceedings, under power of sale, our decisions hold, and they are in accord with doctrine generally prevailing elsewhere, that the requirements of the statute and of the contract stipulations of the instrument not inconsistent with the statute, in respect to the notice and other terms on which the power may be exercised, shall be strictly complied with. Eubanks v. Becton, 158 N. C. 230, 73 S. E. 1009; Brett v. Davenport, 151 N. C. 56, 65 S. E. 611. In Brett v. Davenport, the court said:

"In an instrument of this kind [a mortgage with power of sale] the law is that a statutory requirement or contract stipulation in regard to notice is of the substance, and, unless complied with a sale, is ineffective as a foreclosure, and even when consummated by deed the conveyance only operates to pass the legal title, subject to certain equitable rights in the purchaser, as of subrogation, etc., in case he has paid the purchase money in good faith."

And the position is approved in Eubanks v. Becton, in a well-sustained opinion by Associate Justice Allen, citing, among many other authorities, 27 Cyc. 1465, as follows: *

"A power of sale contained in a mortgage or deed of trust must be strictly pursued, and all its terms and conditions complied with, in order to render the sale valid."

And on page 1466:

"It is essential to the validity of a sale under a power in a mortgage or deed of trust, to comply fully with its requirements as to giving notice of the sale." And page 1472: "That directions of the statute or of the mortgage as to the length of time the notice must be published, or the number of times it must appear, are imperative, and a sale made without strict compliance therewith is invalid and passes no title."

—a position which certainly obtains with us as to the immediate parties to the sale. Hinton et al., Executors, v. Cohoon et al., 82 S. E. 847, at the present term. A perusal of these and other authorities bearing on the subject will disclose that the principle has been established in reference to an original or independent notice of sale, and does not prevail to the same extent in reference to the postponement of a sale which has been in all respects regularly advertised. In such case, and in the absence of some statutory or contract provision to the contrary, a notice of postponement, made in good faith, and reasonably calculated to give proper publicity of the time and place, has been deemed sufficient. Richards v. Holmes, 59 U. S. (18 How.) 143, 15 L. Ed. 304; Allen v. Cole, 9 N. J. Eq. 286, 59 Am. Dec. 416; Way v. Dyer, 176 Mass. 448, 57 N. E. 678; Stevenson v. Dana, 166 Mass. 163, 44 N. E. 128; 7 Cyc. 1476; 28 Amer. & Eng. Dec. p. 806. There are cases to the contrary, and holding that an entirely new notice should be given, but the weight of authority seems to be in support of the position as stated. In 27 Cyc. it is said:

"Where a mortgage foreclosure sale is postponed or adjourned, a new and sufficient notice of the time and place for the sale must be published; but it is generally held that it need not be published or advertised for the same length of time that is requisite in...