North Carolina Joint Stock Land Bank of Durham v. Moss

• Decision Date: 19 April 1939
• Docket Number: 462.
• Citation: 2 S.E.2d 378,215 N.C. 445
• Parties: NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM v. MOSS et al.
• Court: North Carolina Supreme Court

2 S.E.2d 378

215 N.C. 445

NORTH CAROLINA JOINT STOCK LAND BANK OF DURHAM v. MOSS et al.

No. 462.

Supreme Court of North Carolina

April 19, 1939

Jones & Brassfield, of Raleigh, for appellants.

J S. Patterson, of Durham, and W. G. Mordecai, of Raleigh, for appellee.

SCHENCK Justice.

This is an action for specific performance of a contract to purchase real estate heard upon an agreed statement of facts.

The determinative facts are substantially as follows: (1) The defendants agreed to purchase from the plaintiff the two tracts of land described in the complaint for the price and upon the terms alleged; the plaintiff tendered the defendants deed sufficient in form to convey a fee simple title to the locus in quo and demanded compliance with the contract of purchase by payment of cash and delivery of purchase price notes and deed of trust in accord with the said contract, and defendants refused to comply therewith for the alleged reason that plaintiff's title was defective and its deed tendered would not convey to them a fee simple title. (2) The plaintiff derived title from a foreclosure deed from the receivers of the First National Company (formerly the National Trust Company), said receivers having foreclosed a deed of trust on the locus in quo executed by L. M. Gould and Mary W. Gould to the National Trust Company, Trustee, dated January 15, 1925. (3) Mary W. Gould derived title from a foreclosure deed from M. S. Chamblee, mortgagee, dated July 12, 1922, said Chamblee having foreclosed a mortgage to him on the locus in quo executed by L. M. Gould and wife, Mary W Gould. (4) The mortgage from L. M. Gould and Mary W. Gould to M. S. Chamblee was dated October 5, 1920, and secured principal and interest payable five years after date. (5) On October 5, 1920, the same day they executed the mortgage to M. S. Chamblee, L. M Gould and wife, Mary W. Gould, executed and delivered a deed to said Chamblee for an undivided one-third interest in the locus in quo, the consideration mentioned in said deed being, inter alia, the assumption of one-third of the debt secured by the mortgage of even date from said Gould and wife to said Chamblee. (6) On and prior to October 5, 1920, L. M. Gould owned a fee simple title to the locus in quo.

It is the contention of the defendants that Mary W. Gould at the time she executed the deed of trust to the National Trust Company, January 15, 1925, did not have a fee simple title to the locus in quo for two reasons: First, because the foreclosure deed to her by M. S. Chamblee, mortgagee, was made before the expiration of the five years fixed in the mortgage for the power of sale to become absolute; and second, if the court should be of a contrary opinion as to the first reason assigned, by the delivery of the deed for an undivided one-third interest in the locus in quo from L. M Gould and Mary W. Gould to M. S. Chamblee on October 5, 1920, the mortgage of the same date from said Gould and wife to said Chamblee, so far as it affected an undivided one-third interest in the locus in quo, was merged in the deed, and when the mortgage was foreclosed only a two-thirds undivided interest was sold, and the purchaser, Mary W. Gould, acquired title to only a two-thirds undivided interest, and thereby became a tenant in common with M. S. Chamblee, the owner of the other one-third undivided...