Mitchell v. Shuford

• Decision Date: 27 January 1931
• Docket Number: 614.
• Citation: 156 S.E. 513,200 N.C. 321
• Parties: MITCHELL, Chief State Bank Examiner, et al. v. SHUFORD.
• Court: North Carolina Supreme Court

156 S.E. 513

200 N.C. 321

MITCHELL, Chief State Bank Examiner, et al. v. SHUFORD.

No. 614.

Supreme Court of North Carolina

January 27, 1931

Appeal from Superior Court, Buncombe County; MacRae, Special Judge.

Action by John Mitchell, Chief State Bank Examiner, and another against W. E. Shuford. From a judgment in favor of plaintiff defendant appeals.

Reversed.

All parties to trust deed are entitled to have power of sale carried out as written.

Heazel Shuford & Hartshorn, of Asheville, for appellant.

I. M. Bailey, of Railey, and Geo. H. Wright, of Asheville, for appellees.

CLARKSON J.

The question involved in this appeal is whether or not John Mitchell, chief state bank examiner for the Corporation Commission, as liquidating agent of Central Bank & Trust Company of Asheville, an insolvent bank in the hands of said agent of said commission, can exercise the power of sale contained in a deed of trust to said bank as trustee, and make a deed to the purchaser at the sale under the power when such bank did not suspend operations and such examiner for said corporation did not take possession of said bank until after default, whereby the power of sale in such deed of trust became operative and after such bank had given notice of sale as required by the deed of trust and by law, and can exercise the power of sale contained in a deed of trust to said bank as trustee and make a deed to the purchaser at a sale held under the powers contained in said deed of trust? We think not.

From a careful examination of the statutes, we can find no authority, express or implied, for the chief state bank examiner to perform the trust that the owner of the property placed in the Central Bank & Trust Company of Asheville to secure the indebtedness. It is not necessary to set forth the statutes and discuss them. Plaintiff nowhere cites any direct statutory authority, and the inferential authority we do not think sufficiently persuasive to change a contract made between the owner of the property, the Central Bank & Trust Company, trustee, and the cestui que trust, the owner of the indebtedness. In the present controversy, the property was conveyed to the Central Bank & Trust Company, trustee, on certain trusts and conditions in said deed of trust fully set out, and contained a power of sale in words as follows: "But if the said parties of the first part shall make default in the payment of the said weekly interest as aforesaid, or shall fail or refuse to keep the building on said premises insured as aforesaid, or shall make default in any of the aforesaid stipulations for the space of thirty days, or shall cease to be a member of said Association, then, and in such event the debt secured by this instrument shall become instantly due and payable, and the said party of the second part shall have the right, and it shall be its duty when requested by the party of the third part, to immediately enter upon and take possession of the said premises hereby conveyed, and sell the same at public auction for cash or credit, as in its judgment may best subserve the purpose of this deed, first giving notice of sale once a week for four successive weeks in some newspaper published in said city of Asheville, and shall make and deliver to the purchaser thereof a title thereto."

It is settled by numerous authorities that the power of sale contained in a deed of trust is contractual. Eubanks v. Becton, 158 N.C. 230, 73 S.E. 1009; Brown v. Jennings, 188 N.C. 155, 124 S.E. 150. All the parties to the contract are entitled to have the same carried out as written.

In Stevens v. Turlington, 186 N.C. 196, 119 S.E. 210 212...