Palmer v. Latham
| Decision Date | 28 February 1917 |
| Docket Number | (No. 106.) |
| Citation | 91 S.E. 525 |
| Court | North Carolina Supreme Court |
| Parties | PALMER et al. v. LATHAM. |
Appeal from Superior Court, Lee County; Bond, Judge.
Action by John Palmer and others against J. E. Latham to test validity of a mortgage foreclosure sale of land. Judgment for defendant, and plaintiffs appeal. Affirmed.
Hoyle & Hoyle, of Sanford, for appellants.
Seawell & Milliken, of Sanford, for appellee.
CLARK, C. J. [1] The only question presented is the validity of a sale of land at the courthouse door in Moore county under a mortgage which provided that in case of default it should be sold "at the courthouse door in Moore." At the time the mortgage was executed (in 1906) the land lay in Moore county, but prior to the time of sale (in 1915) it bad been placed In the new county of Lee. There is no allegation of bad faith; the sole contention of plaintiff being that the land should have been advertised and sold at the courthouse door in Lee.
In McIver v. Smith, 118 N. C. 73, 23 S. E. 971, the court held that the place designated for the sale under the power sale in a mortgage controls. The appellant contends that mortgage sales are now governed in this respect by Revisal, § 641, which has been enacted since that decision. But that section of the Revisal is under the head of "Execution Sales" in the chapter on "Civil Procedure, " and evidently refers to sales under the foreclosure of a mortgage by order of court and other judicial sales. Revisal, § 1042, providing for "Mortgage Sales, " specifies that such sales should be advertised at the courthouse door in the county where the land lies, but does not require that the sale shall be made at that place; the object evidently being to give notice to creditors and to those in the neighborhood who would be most likely to purchase. This section further prescribes the length of notice "unless a shorter time be expressed in the contract, " showing that the parties can stipulate as to the time. By the omission of any requirement therein as to place of sale that also is left open to contract. The presumption is that such sale was properly advertised. Cawfield v. Owens, 129 N. C. 288, 40 S. E. 62. Requirements as to advertising are directory only (Shaffer v. Bledsoe, 118 N. C. 279, 23 S. E. 1000), but requirements as to time and place of sale are mandatory (Wortham v. Basket, 99 N. C. 70, 5 S. E. 401). In Eubanks v. Becton, 158 N. C. 236, 73 S. E. 1009, the court quotes with approval from Perry on Trusts, § 602:
"If the power contains the details, the parties have made them important, and no change can be made even if the mortgagor would be benefited thereby, nor if a statute provides a different manner."
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Douglas v. Rhodes
... ... 705, after "also published" in ... line 6 was added "once a week." This section is ... brought forward and is substantially C. S. § 687. Palmer ... v. Latham, 173 N.C. 61, 91 S.E. 525, and Hogan v. Utter, ... supra, hold this section applies to execution and judicial ... ...
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In re Bigelow
...court impermissibly relied on equitable defense, we note that our Supreme Court has held that a mortgage is a contract. Palmer v. Latham, 173 N.C. 60, 91 S.E. 525 (1917). Therefore, the principles of contract law are applicable. A cardinal principle of contract law is that a party to a cont......
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Hogan v. Utter
...of the mortgage, which was declared to be the rights of the parties in McIver v. Smith, 118 N.C. 73, 23 S.E. 971. The statement in Palmer v. Latham, supra, that requirements as advertising are directory only, was not necessary to the decision of the case, as the question involved was as to ......
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State Bank of Elberta v. Peterson, 1 Div. 747.
... ... Belcher Land Co. v. Taylor (Tex. Com. App.) 212 S.W ... 647; McConneaughey v. Borgardus, 106 Ill. 321; ... White v. Malcolm, 15 Md. 529; Palmer v ... Latham, 173 N.C. 60, 91 S.E. 525; Davis v ... O'Connell, 92 Miss. 348, 47 So. 672 ... It ... seems also to be the settled ... ...