Peedin v. Oliver
Decision Date | 17 March 1943 |
Docket Number | 240. |
Citation | 24 S.E.2d 519,222 N.C. 665 |
Parties | PEEDIN v. OLIVER et al. |
Court | North Carolina Supreme Court |
Civil action to set aside foreclosure sale and deed made pursuant thereto by defendant D.B. Oliver, as mortgagee, to defendant W.B. Oliver, Jr., as cloud upon title.
The uncontroverted facts are these:
1. Plaintiff, being in possession of a certain tract of land situated in Boon Hill and Pine Level Townships, Johnston County, North Carolina, containing 53 acres more or less, of which he was "the owner in fee" subject to the life estate of his mother, with the joinder of his wife, executed to defendant D.B. Oliver a mortgage deed dated 6 December, 1929, conveying therein the said land by specific description, as security for a certain indebtedness therein described, payable in ten equal annual installments with interest, "the first installment to be due one year from December 6, 1929", with power of sale in the event of default in payment of installments.
2. Plaintiff was unable to, and did not, pay any of the indebtedness due in the years 1930 to 1933, both inclusive or the taxes levied on the land in the years 1929 to 1933, both inclusive.
3. Defendant, D.B. Oliver, acting under the power of sale contained in the mortgage deed from plaintiff and his wife, and through his attorney, advertised the land, in the manner hereinafter shown, for sale at noon on Monday, 5 February, 1934, at the courthouse door in Smithfield, when and where the only bid submitted was $1,750, made in the name of W.B. Oliver, Jr., who is the son of D.B. Oliver, upon which bid the crier declared the land sold, and, pursuant thereto, and on 16 February, 1934, defendant D.B. Oliver, as mortgagee, executed and delivered to W.B. Oliver, Jr., a deed for said land, which deed is of record in office of register of deeds of Johnston County.
Plaintiff in his complaint alleges, and upon the trial below offered evidence tending to show substantially these pertinent facts:
(a) The notice of sale, as published in newspaper, is as follows: .
(b) Plaintiff, his wife, and his sister and her husband, attended the sale on 5 February, 1934. Defendant D.B. Oliver and his attorney, Ed F. Ward, were present. W.B. Oliver, Jr., was not present. "Just prior to the sale", and while in front of the Courthouse preparing to make the sale, "defendant D.B. Oliver directed his attorney *** to bid his claim and make the deed to his son, W.B. Oliver, Jr.". After the attorney had read the notice of sale, he "made one bid", "and there was no other bid". No report of the sale was filed or recorded in the office of the clerk of Superior Court.
On the other hand, defendant, D.B. Oliver, and defendants, W.B. Oliver, Jr., and wife, in separate answers filed, deny the material allegations of the complaint, and assert that the foreclosure sale was regularly advertised and conducted and that W.B. Oliver, Jr., became the last and highest bidder, and that the sale to him is valid. Defendants further plead that the plaintiff, at the time, had full knowledge of all the facts and circumstances in connection with the foreclosure sale, and made no objection thereto, and by his conduct has since ratified the same, and is estopped to attack the validity of the foreclosure, and of the deed pursuant thereto. They further plead laches of plaintiff, and the three-year statute of limitation, C.S. § 441, in bar of plaintiff's right to recover in this action.
Plaintiff in reply denies the material averments in the further answers of the defendants.
Upon the trial below plaintiff offered in evidence: (1) Deed from B.I. Peedin and wife, Hepsie Peedin, father and mother of plaintiff, to plaintiff, dated 4 April, 1910, registered 4 May, 1910, for recited consideration of $1,000, in which the land in question is conveyed "in fee", and which "reserves and excepts the life estate of the said B.I. Peedin and Hepsie Peedin". (2) Quitclaim deed from Hepsie Peedin to W.B. Oliver, Jr., dated 5 January, 1934, and registered, for recited consideration of $100, therein describing the land as in the mortgage deed from plaintiff and wife to D.B. Oliver of date 6 December, 1929; (3) Summons in this action dated 8 November, 1941, and served 12 November, 1941.
And plaintiff, in his own behalf, further testified, in pertinent part, that on 6 December, 1929, and prior thereto he was in possession of the land described in the mortgage deed; that his mother had a life estate in said land; and that she did not sign the mortgage deed. Speaking directly, he testified: . Then plaintiff named those who had cut wood, approximately thirty cords, "worth about $1.50 a cord", and, continuing, said: And, continuing, plaintiff further testified that W.B. Oliver, Jr., the son of D.B. Oliver, was working in his father's store on 5 February, 1934, but that he did not know in what capacity, and that plaintiff "was told by 'B' that he was getting $126.00 a month and had been working in the store since he got through college".
On cross examination plaintiff continued by saying:
Mrs. Annie May Peedin, wife of plaintiff, testified in part, in corroboration of plaintiff as to what D.B. Oliver told his attorney at the sale with regard to bidding and making of deed to "B", and as to improvements made on the land while they "were there".
The clerk of Superior Court testified that there is no report or record made by D.B. Oliver of the foreclosing of the mortgage deed in question.
To judgment of nonsuit at the close of plaintiff's evidence, plaintiff excepted and appeals to the Supreme Court, and assigns error.
Parker & Lee and Wellons & Wellons, all of Smithfield, for plaintiff appellant.
G.A. Martin, of Smithfield, for defendants appellees.
A careful consideration of the evidence shown in the record on this appeal, taken in the light most favorable to plaintiff fails to show error in the judgment of nonsuit entered in Superior Court. Plaintiff's challenge thereto is controlled by answer to three questions: First: Does the notice of foreclosure sufficiently describe the land to be sold? The answer is Yes. While the statute C.S. § 2588 provides that "in sales of real...
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Hughes v. Oliver
... ... 54, 21 ... S.E.2d 900 ... One ... guilty of laches has simply omitted 'to assert a right ... for an unreasonable and unexplained length of time, under ... circumstances prejudicial to adverse party. ' Black's ... Law Dictionary, 3d Ed., p. 1062; Peedin v. Oliver, ... 222 N.C. 665, 24 S.E. 2d 519; Stell v. Trust Co., ... 223 N.C. 550, 27 S.E.2d 524; Hardy v. Mayo, 224 N.C ... 558, 31 S.E.2d 748 ... Here ... the plaintiffs, with full knowledge of all the facts relative ... to the 70-acre tract of land, and knowing the ... ...
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McNeill v. McNeill
...that there may be fraud, and gives an artificial effect to the relation beyond its natural tendency to produce belief. Peedin v. Oliver, 222 N.C. 665, 24 S.E.2d 519; Harris v. Hilliard, 221 N.C. 329, 20 S.E.2d This principle, it would seem, was applicable to the facts of the instant record,......
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