Jefferson Standard Life Ins. Co. v. Boogher

• Decision Date: 01 November 1944
• Docket Number: 307.
• Citation: 31 S.E.2d 771,224 N.C. 563
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. BOOGHER et al.
• Court: North Carolina Supreme Court

31 S.E.2d 771

224 N.C. 563

JEFFERSON STANDARD LIFE INS. CO. v. BOOGHER et al.

No. 307.

Supreme Court of North Carolina

November 1, 1944

This is an action in ejectment wherein the plaintiff seeks to be declared the owner of and entitled to recover the possession of a certain lot of land in the Town of Blowing Rock, County of Watauga, described as follows 'Beginning at a stone on Main Street and runs north 88 deg. West 100 feet to a stake; thence North 9 deg. East 100 feet to a stake; thence South 88 deg. East 100 feet to a stone; thence south 9 deg. West 100 feet to a stone on corner, known as Lot No. 1 in Abernathy Plat, and being the lands on which is located the house known as Hob Nob Inn.'

The plaintiff alleges and contends that the defendants were formerly the owners of the locus in quo; that they executed a deed of trust thereon to Julian Price, trustee, to secure a loan from the Jefferson Standard Life Insurance Company of $1500; that J. E. Holshouser was substituted for Julian Price as trustee in said deed of trust; that there was default in the payment of the loan, and the insurance company called upon the substituted trustee to foreclose the deed of trust, which said substituted trustee did; that at the foreclosure sale, duly conducted on May 10, 1943, the insurance company became the last and highest bidder for the property described in said deed of trust, including the locus in quo; that said substituted trustee executed and delivered to the insurance company a foreclosure deed therefor, containing among other recitals the following: '* * * after due advertisement as in said deed prescribed and by law provided, the said J. E Holshouser, substituted trustee, did on the 10th day of May 1943, at the courthouse door of Watauga County, in Boone, North Carolina, at 11:00 A. M., expose to public sale the lands and property hereinafter described,' and, notwithstanding the said company has demanded possession of said land, the defendants refuse to surrender the same.

While the defendants admit the execution and delivery of the deed of trust on land including the locus in quo to Julian Price, trustee for the Jefferson Standard Life Insurance Company, and the substitution of J. E. Holshouser as trustee therein, the default in the payment of the loan for which the deed of trust was given to secure, and that a purported foreclosure sale was held on May 10, 1943, by the said substituted trustee and in pursuance thereof deed was executed and delivered to the Jefferson Standard Life Insurance Company, they aver and contend that said purported foreclosure sale was void for the reason that it was not advertised as by the provisions of the said deed of trust provided and as by law required, and that consequently said foreclosure deed was void and conveyed no title to the grantee therein, the Jefferson Standard Life Insurance Company.

The Court submitted certain issues arising upon the adverse allegations of the plaintiff and defendants, the first of which reads: '1. Was the property described in the complaint advertised for sale as provided in the deed of trust executed to the Jefferson Standard Life Insurance Company?' The answers to the other issues submitted were made to turn upon the answer to the first issue.

The jury answered the first issue in the affirmative, and the Court entered judgment in favor of the plaintiff, from which the defendants appealed, assigning errors.

Trivette & Holshouser, of Wilkesboro, and Smith, Wharton & Jordan, of Greensboro, for plaintiff-appellee.

John W. Aiken, of Hickory, for defendants-appellants.

SCHENCK Justice.

On the first issue submitted the Court repeatedly charged the jury to the effect that the burden of proof on the first was upon the defendants to satisfy the jury by the greater weight of the evidence, or by the preponderance of the evidence, that the issue should be answered in the negative as they, the defendants, contended it should be answered. Among similar instructions, the Court told the jury for its guidance: 'And I instruct you, gentlemen, if you are satisfied from the evidence and by its greater weight or preponderance thereof, the burden being on the defendants, that this notice or a copy thereof of like character with the notices posted elsewhere and published in a newspaper, was not published by posting to the world at Holshouser's store in Blowing Rock, until the 12th of April, 1943, then I instruct you that would not be a valid posting, and if you so find from the evidence and by the greater weight or preponderance thereof, you should answer the first issue No, the burden being on the defendants'. And also 'Such a showing, gentlemen, as I have allready told you, constitutes a prima facie case that the sale was made, the burden being on the defendants to show that the sale was made under an improper posting, that the posting was not properly done, and that the terms required in the deed of trust were not met.'

Such instructions, together with others of like import, are made the bases of exceptive assignments of error, and we are constrained to hold that such assignments are well taken.

While it is true the recitals in the foreclosure deed from the substituted trustee to the last and highest bidder at the foreclosure sale, that is the deed from Holshouser, trustee to the Jefferson Standard Life Insurance Company, are prima facie evidence of the correctness of the facts therein set forth, and the burden of proving otherwise is on the person attacking the sale, in this case ...