Grady v. Parker
| Decision Date | 15 October 1947 |
| Docket Number | 240 |
| Parties | GRADY v. PARKER et al. |
| Court | North Carolina Supreme Court |
Certain phases of the case now under review were here on appeal at the Fall Term, 1947, of this Court and will be found reported as First-Citizens Bank & Trust Co. v. Parker, 225 N.C 480, 35 S.E.2d 489, 163 A.L.R. 1003. Reference to the statement of the case as there reported and the opinion by Mr. Justice Barnhill is sufficient to show the historical background of the case and to supplement this statement in parts essential to an understanding of the present appeal.
It will be found that the action was originally instituted on February 6, 1935, by one of the successive guardians of an incompetent veteran against James D. Parker the original guardian, and his wife; was tried at September Term, 1936, of Johnston County Superior Court, and resulted in a judgment on the $4,000 note given by Parker for funds 'loaned' to himself out of the guardianship fund; and an order of foreclosure upon certain property of Parker conveyed to H. V. Rose, Trustee, in a deed of trust securing the 'loan.' In this action Rose, the trustee, was not made a party, either plaintiff or defendant. Mrs. Parker filed an answer resisting a sale of the property at that time because of the inevitably low price which the property would bring because of the depression. The property, however, was sold under order of the court by W. P Wellons, Commissioner.
The present controversy concerns only that portion of the real estate known as the 'office property' which appears to have been resold under an order entered at November Term, 1938, in which the First Citizens Bank & Trust Co., a successor guardian, was permitted to bid on the property. A report of this sale followed without any recommendation or statement of the value of the property, and on January 28, 1939, an order of confirmation was made by Hon. Clawson L. Williams, Judge, who purports to make the confirmation as Resident Judge of the Fourth Judicial District, and signs himself as such. At that time, the record discloses, there was no session of Superior Court holden in the County of Johnston.
The record does not disclose that the parties defendant herein had any notice of any motion for a resale of the property, or of the intended confirmation.
At the April Term, 1947, of the Superior Court of Johnston County the successor guardian, having been made a plaintiff in the action, caused the proceeding to be put on the motion docket. At the call of the docket and before the case was heard the defendants demurred ore tenus on the ground that the complaint as to the foreclosure of the mortgage did not state a cause of action, for that the mortgagee or trustee in the deed of trust, holder of the legal title, was not, and never had been a party to the action. The demurrer was overruled and the defendants excepted and appealed.
Thereupon the plaintiff, upon unverified petition and without affidavit, moved the court that the original complaint be amended so as to name the mortgagee, H. V. Rose, Trustee, as a party plaintiff therein and that he be allowed to adopt the original complaint nunc pro tunc.
The court, over objection of the defendants, entered an order upon the motion making the said Rose, Trustee, a party plaintiff to take effect nunc pro tunc at the time of the hearing and order of foreclosure, and from this defendants excepted and appealed.
E. A. Parker, of Benson, and Jane A. Parker, of Smithfield, for defendants appellants.
Lyon & Lyon, of Smithfield, for plaintiff appellee.
The defendants do not challenge the validity of the deed of trust or the present right of enforcement, nor do they dispute the effectiveness of the judgment against Mrs. Parker on the note. They do contend that the order of foreclosure, made while Rose, trustee in the deed of trust, was not a party to the proceeding, was void; and that the order attempting to cure its invalidity by making Rose a party by relation nunc pro tunc before the order was made is beyond the present power of the court, and at best could only make the trustee a party for some subsequent action in the premises as might be properly taken; that the order of confirmation was a final order without which no title is vested in the bidder, and under the law then current could not be made out of term and out of the county where the action was pending without consent of parties, which should affirmatively appear of record.
For these reasons they conclude that they are now entitled to redeem the property and to that end have an accounting for rents and profits...
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