Phipps v. Wyatt

• Decision Date: 12 November 1930
• Docket Number: 365.
• Citation: 155 S.E. 721,199 N.C. 727
• Parties: PHIPPS v. WYATT.
• Court: North Carolina Supreme Court

155 S.E. 721

199 N.C. 727

PHIPPS v. WYATT.

No. 365.

Supreme Court of North Carolina

November 12, 1930

Appeal from Superior Court, Alleghany County; Schenck, Judge.

Ejectment action by J. L. Phipps against E. G. Wyatt. From an adverse judgment, defendant appeals.

No error.

Bona fide purchaser relying on record could not be required, in exercise of due care, to examine manner of sale and trustee's filed report.

As against subsequent bona fide purchaser for value without notice of irregularities in sale under trust deed, grantor held estopped to claim title.

This is an action of ejectment brought by plaintiff against defendant. The evidence on the part of plaintiff was to the effect that defendant, E. G. Wyatt, made: (1) A deed of trust to the Federal Land Bank on the property in controversy to secure the payment of $4,500. At the time the property was sold, there were about three installments of $147.50 each due the Federal Land Bank, and some taxes. (2) A deed of trust to R. F. Crouse, trustee for Mrs. G. C. (Pearl) Perry, to secure the payment of $2,340, dated November 6, 1926. The property was sold by R. F. Crouse, trustee, upon default, under this deed of trust, and purchased by Mrs. G. C. (Pearl) Perry for $1,600, and at the time there was $1,652 due her, which included principal, interest, and cost of sale.

In the statement of case on appeal, is the following: "Default having been made in payment by defendant, and demand having been made upon the Trustee to foreclose, under date of July 17, 1928, the Trustee advertised the sale of the land to be sold on August 16, 1928. Defendant having requested a postponement of the sale to enable him, if possible, to secure the money to pay off the deed of trust, in compliance with said request, on date of sale, as advertised, the Trustee continued the sale without readvertisement in a newspaper, made proclamation each day at the hour set for the sale, continuing said sale until the same hour on the following day, and in this manner the sale was continued from day to day until Sept. 15, 1928, when he sold the land to Mrs. G. C. (Pearl) Perry, cestui que trust, upon her bid of $1,600.00. E. G. Wyatt was present when the sale was continued on August 16th, and when the land was actually sold on September 15th, and made no objection to the sale; and, on the 8th day of October, 1928, R. F. Crouse, Trustee, executed a deed conveying said land to Mrs. Perry, the purchaser which deed was promptly recorded in Alleghany County. Under date of November 24, 1928, Mrs. Perry sold the land to C. W Higgins, in consideration of $1,652.00, and on that date executed a deed conveying the land, which deed was promptly recorded in Alleghany County. Under date of January 11, 1929 C. W. Higgins sold the land to the plaintiff in consideration of $4,500.00, and on that date executed a deed conveying said land to the plaintiff, which deed was recorded on the -- day of January, 1929. The plaintiff brought suit for possession of the property. The defendant alleged there was not a valid sale under the deed of trust. At the beginning of the trial the defendant was allowed to amend paragraph 3 of the answer so as to add the following: 'The price bid by the cestui que trust was grossly inadequate price.' The plaintiff was allowed to reply so as to deny the amendment. At the conclusion of all the evidence, His Honor directed the jury to answer the issue of possession in favor of the plaintiff."

The following is in the deed of trust from defendant, E. G. Wyatt, to R. F. Crouse, trustee for Mrs. G. C. (Pearl) Perry: "It is further stipulated and agreed that any statement of facts or recitals by said trustee in his deed in relation to the nonpayment of the money secured to be paid, the amount due, the advertisement, sale, receipt of the money, and the execution of the deed to the purchaser, shall be received as prima facie evidence of such fact."

Also the following is in the deed from R. F. Crouse, trustee, to Mrs. G. C. (Pearl) Perry: "And, whereas, under and by virtue of authority confirmed by said deed of trust and in accordance with the terms and stipulations of the same and after due advertisement as in said deed of trust prescribed, and by law provided, the said R. F. Crouse, Trustee, did, on the 15th day of September, 1928, at the courthouse door, in Sparta, said County and State, expose to public sale the land hereinafter described, and, whereas, Pearl Perry became the last and highest bidder for the same, at the price of 81,600.00, the said land being sold subject to all prior deed of trust and other liens; and, whereas, said sale was reported to the Clerk of Superior Court; and, whereas, more than ten days have elapsed and no upset bid has been filed; and, whereas, the said purchase price has been paid in full as in said deed of trust prescribed," etc.

The evidence on the record shows that the plaintiff, J. L. Phipps, was a bona fide purchaser for value and without notice, if there were irregularities in the sale by R. F. Crouse, trustee, of such a nature that a court should set the sale aside between the parties. The deed from Higgins and wife to plaintiff, Phipps, recites a consideration of $4,500.

Phipps testified, in part: "I am the plaintiff. When I bought this land, I was living at Meadow Grove, Nebraska. After I got a deed for the land, I think it was January 11th, I came to Piney Creek here, on February 7th, I believe, 1930. That would be a little over thirteen months after I bought the land. I got the deed on January 11, 1929. I did not know anything about any contentions of Mr. Wyatt or about any irregularities of the sale, about the advertisement. I did not know anything about any equities claimed against the land, any irregularities of the sale. *** I was to pay Mr. Higgins $4,500.00 and assume the Federal Land Bank loan. It would not be quite $9,000.00 I was assuming and paying. $4,500.00 was what I paid at the start. I haven't paid all of it yet. I paid $1,000.00. That leaves $3,500.00 I am due Mr. Higgins. I suppose I can pay the balance tomorrow if I want to. I have got some money to pay it."

The issue submitted to the jury and their answer thereto, was as follows: "Is the plaintiff, J. L. Phipps, the owner and entitled to the possession of the land described in the complaint? Answer: Yes."

The court below charged the jury, in part, as follows: "That if you find the facts to be as shown by all the evidence in the case, that is, the testimony of the witnesses and the record evidence, that you will answer this issue, Yes."

W. R. Bauguess, of Jefferson, George Cheek, of Sparta, and U.S. G. Bauguess, of Chicago, Ill., for appellant.

R. F. Crouse and C. W. Higgins, both of Sparta, for appellee.

CLARKSON J.

The sole question involved in this appeal is the charge of the court below: ""That, if you find the facts to be as shown by all of the evidence in the case, that is, the testimony of the witnesses, and the record evidence, that you will answer this issue Yes."

We think the charge correct from the facts and circumstances of this case. In the present action it is admitted of record "E. G. Wyatt was present when the sale was continued on August 16th, and when the land was actually sold on September 15th, and made no objection to the sale."

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