Jessup v. Nixon
| Decision Date | 19 September 1923 |
| Docket Number | 16. |
| Citation | 118 S.E. 908,186 N.C. 100 |
| Parties | JESSUP ET AL. v. NIXON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Perquimans County; Connor, Judge.
Action by Cornelia T. Jessup and others against Thomas Nixon. Judgment for plaintiffs, and defendant appeals. Error.
In the absence of evidence to the contrary, the presumption is that due notice and advertisement of a foreclosure sale was given especially after the lapse of 25 years.
After a lapse of 25 years and the death of witnesses, there is a presumption of regularity in the execution of the power of sale and in advertising.
This was an action begun August 11, 1921, to set aside a sale made July 1, 1896, under a mortgage. The plaintiffs are the heirs at law of Francis Nixon, deceased, who, on September 3, 1889 executed a mortgage to David Cox, duly recorded, to secure an indebtedness of $350. Francis Nixon died March 30, 1896, in possession of the premises--104 acres of land.
The plaintiff contends that the sale at which the defendant purchased was invalid, because not preceded by due notice and advertisement as required in the mortgage, and because the dower and homestead were reserved, and not sold, contrary to the terms of said mortgage, and because the defendant was the administrator of the mortgagor when he became purchaser.
That as further alleged, he purchased the land at a grossly inadequate price, giving those present at the sale to understand that he was buying for the widow and plaintiffs thereby inducing others not to bid. The court instructed the jury to answer the first issue "Yes," and the second issue "Yes."
The jury found as to the third issue that the fair market value of the land at the time of the sale was $1,250. Fourth issue, that the defendant did not fraudulently procure the foreclosure of said mortgage and the sale of the land, nor cause same to be sold subject to the dower interests of the widow and the homestead of the children, and thereby obtain the same at a grossly inadequate price as alleged in the complaint, and fifth issue, that the defendant did not, with the purpose of purchasing the property in question at an undervaluation, cause or knowingly permit it to be understood at such sale, that he was purchasing such property for the benefit of the heirs of the mortgagor, deceased, as alleged.
The sixth issue was, "Is the plaintiffs' cause of action barred by the 10-year statute of limitations as alleged in the answer?" which the court instructed the jury to answer, "No."
The court entered judgment on the verdict that the plaintiffs are entitled to redeem the land described in the complaint, and decreed that the purchaser held the same upon the trust imposed by the mortgage deed, appointed a referee to state an accounting between the parties and refused a motion for a new trial upon the first, second, and sixth issues. Appeal by defendant.
Charles Whedbee, of Hertford, Thompson & Wilson, of Elizabeth City, and Ward & Grimes and Stephen C. Bragaw, all of Washington, N. C., for appellant.
Ehringhaus & Hall, and Meekins & McMullan, all of Elizabeth City, for appellees.
There was no evidence that due notice and advertisement of sale were not given in 1896, or that the mortgage sale was not regular. It was therefore error to instruct the jury to answer the first issue "Yes." The ordinary presumption is, certainly after the lapse of 25 years, as in this case, that notice and advertisement of sale were given; but even if that were not so, there was no presumption that they were not given, so as to justify the court in instructing the jury as a matter of law they were not.
If the sale was made subject to the widow's dower and the homestead, this was for the benefit of the widow and children, and is not a matter for which they can complain after the lapse of 25 years, so as to have this sale declared invalid. The creditors might have protested this reservation but that they gave up to the widow a dower which she had released, and thus reduced the amount available, for the payment of debts does not give the plaintiffs an equity to have the sale set aside after this lapse of time, and to charge the defendants with the rents of the land. Certainly it was not proper for the court to instruct the jury peremptorily to answer the second issue as asked by plaintiffs and given.
The jury have found that the defendant did not fraudulently procure the foreclosure of said mortgage and the sale of said land, and cause the same to be sold subject to the dower interests of the widow and the homestead rights of the children, and thus obtain the same at a grossly inadequate price, as alleged in the complaint.
The jury have also found the fifth issue that the defendant did...
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