Oliver v. Piner
| Decision Date | 12 April 1944 |
| Docket Number | 311. |
| Citation | 29 S.E.2d 690,224 N.C. 215 |
| Parties | OLIVER et ux. v. PINER et ux. |
| Court | North Carolina Supreme Court |
This is an action in ejectment to recovery the possession of a certain tract of land in No. 6 Township, Craven County, North Carolina, it being the second lot described in a deed from Sidney Tilton to Hazel Blalock, recorded in Book 294, page 107, Records of Craven County, and being the same land conveyed to the plaintiffs by deed from W. B. Rouse, trustee joined in by Hazel Blalock, dated July 3, 1942, recorded in Book 364, page 182, of said records.
The defendants are in possession of the locus in quo and claim title thereto by virtue of a deed from Hazel Blalock to them dated August 22, 1936, recorded in Book 322 page 256, of the Records of Craven County.
Plaintiffs and defendants claim Hazel Blalock as a common source of title.
It is the contention of the plaintiffs that Hazel Blalock executed and delivered to the defendants a deed for the locus in quo on August 22, 1936, and simultaneously therewith the defendants executed and delivered to the said Hazel Blalock a deed of trust securing a purchase price note for $540, with W. B. Rouse as trustee therein; that there was default in the compliance with the terms of the deed of trust, and as a consequence thereof the deed of trust was subsequently foreclosed, at which foreclosure sale Hazel Blalock became the last and highest bidder and assigned her bid to the plaintiffs, and deed was accordingly made by the trustee, W. B. Rouse, in which Hazel Blalock joined, to the plaintiffs, on July 3, 1942; and that by virtue of said foreclosure deed the plaintiffs became the owners of and entitled to the possession of the land.
The defendants, while admitting that there was a purported foreclosure sale of the locus in quo by W. B. Rouse, trustee in a deed of trust executed by them to secure a purchase price note to Hazel Blalock, and that Hazel Blalock joined in the foreclosure deed to the plaintiffs, allege that such purported sale was void for the reason that there was no default in the conditions of the deed of trust signed by them.
The jury upon instructions peremptory in their nature answered the issues in favor of the plaintiffs and from judgment predicated on the verdict the defendants appealed, assigning errors.
L. A Stith and W. H. Lee, both of New Bern, for appellants.
William Dunn and H. P. Whitehurst, both of New Bern, for appellees.
The decision of this case turns upon the question as to whether the foreclosure sale, consummated by the delivery of the deed of July 3, 1942, from Rouse, trustee, joined in by Hazel Blalock, assignor of the last and highest bid at the foreclosure sale, to the plaintiffs was valid. If valid, the plaintiffs must prevail and the judgment of the Superior Court must be affirmed; if not valid, the defendants must prevail and the judgment of the Superior Court must be reversed.
The plaintiffs contend that the foreclosure sale was valid for the reason that the defendants defaulted in the compliance with the conditions in the deed of trust executed by them to Rouse, trustee for Hazel Blalock, in that the defendants first, failed to make the payments of $60 on the first day of September of each year for nine years, as provided in the deed of trust; second, failed to pay the taxes on the land involved for the years 1936, 1937, 1938 and 1939; and, third, failed to keep the property insured for the benefit of the party of the third part, Hazel...
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