Hare v. Weil
| Decision Date | 04 May 1938 |
| Docket Number | 244. |
| Citation | 196 S.E. 869,213 N.C. 484 |
| Parties | HARE et ux. v. WEIL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; H. A. Grady, Judge.
Action by Charlie Hare and wife against Leslie Weil and another trading as H. Weil & Brothers, to recover title to land under an alleged parol trust agreement, and for an accounting for rents and profits. From a judgment for defendants, plaintiffs appeal.
Affirmed.
Civil action to recover title to land under alleged parol trust agreement, and for accounting for rents and profits.
The uncontroverted facts are substantially these: On July 27 1928, plaintiffs executed a deed of trust to R. Jack Smith trustee, in which the lands in question, owned by the feme plaintiff, were conveyed to secure an indebtedness of $309.50 due by them to defendants on January 1, 1929. This conveyance was subject to a prior deed of trust executed by plaintiffs to Southern Trust Company, trustee, to secure an indebtedness to Virginia-Carolina Joint Stock Land Bank. At request of defendants, and under the power of sale contained in the deed of trust to Smith, trustee, he duly advertised and sold the land on August 30, 1930, in accordance with the terms contained in the deed of trust, when the defendants became the highest bidders at $385. Upon the bid being raised, a resale was held on October 18, 1930, when the defendants again became the purchasers at $415, and pursuant thereto and in due time deed was duly made to them by the trustee.
Plaintiffs allege, and offered evidence tending to show, that on the date of the deed of trust to Smith, trustee, he was and has been at all times since an employee of defendants; that prior to the first sale, plaintiff Charlie Hare, representing himself and as agent for his wife, the plaintiff Eula Hare approached the defendant Lionel Weil, and informed him that plaintiffs were unable to pay in full the indebtedness due to defendants; that thereupon said defendant stated that if the plaintiffs would not resist the foreclosure under the power of sale contained in the deed of trust to Smith, he would purchase the property at the sale, subject to liens of record, and hold the title to same for plaintiffs until they were able to pay him; that relying upon the defendants' promise to purchase and hold the land, and in consequence thereof, the plaintiffs allowed the land to be sold; that in May, 1933, plaintiffs tendered to defendants the amount due them and demanded a conveyance of the land; that defendants disavowed the parol trust agreement and refused to make the deed; and that plaintiffs have been at all times since ready, able, and willing to comply with the terms and conditions of the trust agreement and to take title to the lands.
On the other hand, the defendants deny that they made any such agreement as alleged by the plaintiffs. Defendants aver that after they became the owners and entitled to the possession of the land in question, they immediately took possession of it and, except for the rental agreement with plaintiffs, they remained in possession thereof up to the date of filing answer. They further aver that they became the owners of the land on October 30, 1930, and shortly thereafter rented same to plaintiffs by a written agreement of lease on March 23, 1931, which the plaintiffs signed; that the lease provided that defendants should rent to the plaintiffs for the year 1931; that plaintiffs accepted the tenancy and as such tenants paid a part of the rent specified in the lease; that in January, 1932, the lease expired and plaintiffs moved from the lands; and that by reason of the said tenancy or rental agreement, under which there was an attornment by the plaintiffs to the defendants, the plaintiffs are estopped from questioning or attacking the title of the defendants.
The plaintiff Charlie Hare testified on cross-examination that he did not remember signing the agreement of lease, but admitted his signature thereto, and the same was marked for identification. On being further examined by defendants, he testified that he did not pay one cent of rent for 1931; that he "got off the land in 1932"; that he did not raise the bid on the property after the first foreclosure sale; and did not know who did raise it; that he did not know there was a resale; and that he swore to the complaint.
The court below overruled defendants' motion for nonsuit at close of plaintiffs' evidence. Thereupon defendants, over objection by plaintiffs, offered in evidence the agreement of lease which had been identified by plaintiff Charlie Hare, and signed by him and his wife, in which the terms of the lease are set forth as alleged, and in which, among others, this provision appears: "That the parties of the first part (defendants) agree in the event the parties of the second part (plaintiffs) pay to the parties of the first part all of said rental when due that the parties of the first part will upon request so to do by the parties of the second part on or before November 5, 1931, sell and convey said lands to the parties of the second part on November 5, 1931, subject to the lien of the debt secured by the deed of trust * * * to Southern Trust Company * * * and subject to all other liens * * * upon the payment to the parties of the first part * * * of a purchase price of $860 therefor," plus amount of installments paid to Land Bank, taxes and interest, "it being expressly agreed that in the event the parties of the second part fail to pay said rental when November 5, 1931, is due, or fail to pay said purchase price therefor on November 5, 1931, then and in either of such events, the option contained in this paragraph to purchase said lands shall be null and void."
Defendants further offered in evidence, over objection by plaintiffs, record in office of the clerk of superior court of sale and of resale of the property, in which it appears that order of resale was made upon the bid at first sale being raised by plaintiff Charlie Hare.
From judgment as of nonsuit at close of all the evidence, plaintiffs appeal to the Supreme Court and assign error.
In action for realty and for accounting for rents and profits, wherein plaintiffs claimed under alleged parol agreement of defendants, as cestuis under trust deed executed by plaintiffs, to purchase on foreclosure and hold title until plaintiffs could pay defendants, lease, which was introduced by defendants, and which showed that plaintiffs, as tenants, unconditionally recognized defendants' title, could be considered on motion for judgment as of nonsuit.
John S. Peacock, Scott B. Berkeley, and Charles P. Gaylor, all of Goldsboro, for appellants.
Ehringhaus, Royall, Gosney & Smith and D. C. Humphrey, all of Goldsboro, for appellees.
On the factual situation presented by the record on this appeal, we hold that the judgment as of nonsuit was properly entered.
It is well settled in this jurisdiction that the cestui que trust has the right to buy at the trust sale unless fraud or collusion is alleged or proved. Monroe v. Fuchtler, 121 N.C. 101, 28 S.E. 63; Hayes v. Pace, 162 N.C. 288, 78 S.E. 290; Winchester v. Winchester, 178 N.C. 483, 101 S.E. 25; Simpson v. Fry, 194 N.C. 623, 140 S.E. 295; Bunn v. Holliday, 209 N.C. 351, 183 S.E. 278; Hill v. Fertilizer Co., 210 N.C. 417, 187 S.E. 577; North Carolina Joint Stock Land Bank v. Hardy, 211 N.C. 459, 190 S.E. 730.
In the present case there is no allegation of fraud or collusion in the foreclosure...
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