Mciver v. Smith

• Decision Date: 25 February 1896
• Citation: 23 S.E. 971,118 N.C. 73
• Court: North Carolina Supreme Court
• Parties: McIVER v. SMITH et al.

23 S.E. 971

118 N.C. 73

McIVER

v.SMITH et al.

Supreme Court of North Carolina.

Feb. 25, 1896.

Mortgages — Sat, e under Power — Burden of Proof—Notice of Sale to Purchaser of Equity of Redemption.

1. In an action between the purchaser of the mortgagor's equity of redemption and a purchaser at the trustee's sale under the power for default in payments for an accounting, and to redeem because of the alleged invalidity of the sale under the power, the burden is on the former to show that, at the time of the sale, nothing was due on the mortgage.

2. The purchaser of the mortgagor s equity of redemption is not entitled to personal notice of a sale under the power contained in the mortgage, the mortgage authorizing a sale "after advertising" in case of default.

Appeal from superior court, Craven county; Bryan, Judge.

Action by W. D. Mclver against D. W. Smith and others for an accounting and to redeem from mortgage foreclosure. There was a judgment for defendants, and plaintiff appeals. Affirmed.

W. D. McIver, for appellant.

W. W. Clark, for appellees.

FAIRCLOTH, C. J. On May 10, 1890, the defendants, Smith and wife, executed a mortgage to Nancy Coward, on the land in controversy, to secure several notes mentioned therein, falling due on January 1, 1891, 2, 3, and 4, with power of sale in case of default in payment of either bond or any part thereof. Subsequently judgments were entered against said Smith, and, under executions issued thereon, the sheriff sold the land, and the plaintiff became the purchaser, and brought this action on June 30, 1894. On January 16, 1893, the mortgagee sold the land under the power in the mortgage, and under that sale the defendants claim title. Thus, the plaintiff acquired the mortgagor's equity of redemption, subject to the mortgage debt; and, if he had discharged that debt, he would have had the legal estate and a complete title. At the outset on the trial, the plaintiff moved for judgment on the complaint and answer. This motion was, in legal contemplation, a demurrer to the answer, in which, among other things, it is averred that the amount of the mortgage debt, due at the mortgagee's sale, was $450 and the cost and expense of sale. Upon this admission, the plaintiff was not entitled to judgment on the complaint and answer, and his motion for judgment non obstante veredicto was equally untenable.

The plaintiff alleged that, at the time of the mortgage sale, nothing was due on the mortgage debt, and this is denied by the...