Sanderlin v. Cross

• Decision Date: 18 October 1916
• Docket Number: 26.
• Citation: 90 S.E. 213,172 N.C. 234
• Parties: SANDERLIN ET AL. v. CROSS ET AL.
• Court: North Carolina Supreme Court

90 S.E. 213

172 N.C. 234

SANDERLIN ET AL. v. CROSS ET AL.

No. 26.

Supreme Court of North Carolina

October 18, 1916

Appeal from Superior Court, Pasquotank County; Bond, Judge.

Action by Georgia Sanderlin and others against Peter Cross and others. Judgment of nonsuit, and plaintiffs except and appeal. Affirmed.

Action by mortgagor's heirs, alleging that trustee in deed of trust exceeded his power in selling timber and land separately instead of selling as a whole, and on that ground asking that sale be set aside and for an accounting, was within meaning of an action to redeem.

This action was instituted by the plaintiffs, who are the heirs at law of Geo. W. Sanderlin and his wife, E. W. Sanderlin, for the purpose of setting aside sales of a tract of land and the timber thereon, situated in the county of Pasquotank, which sales were made by E. F. Aydlett, trustee, to James Parker and J. D. Parker, the trustee claiming the right to do so by virtue of a deed of trust, and asking that the plaintiffs be declared the owners of the land, subject only to such amount upon an accounting as may be found due on the debt secured in the deed of trust. The defendants, heirs at law of James and J. D. Parker, claim title to said lands under said sales by said Aydlett, trustee, and also rely upon the statutes of limitation.

The evidence introduced by the parties supports the following facts:

(1) That on August 6, 1894, E. W. Sanderlin and her husband, Geo W. Sanderlin, ancestors of the plaintiffs, executed to E. F Aydlett, trustee, party of the second part, and James Parker and J. D. Parker, ancestors of the defendants, of the third part, the deed of trust set out in the record, to secure the sum of $8,987.27, an indebtedness recited to be due the said James Parker and J. D. Parker by the said E. W. Sanderlin and Geo. W. Sanderlin, the indebtedness therein recited being payable 6, 7, 8, 9, and 10 years after date, with interest thereon from date until paid at the rate of 6 per cent. per annum, payable semiannually, which deed of trust conveyed the tract of land in controversy in this action, and on which the timber mentioned in the pleadings stood, the tract containing 1,744 acres.

(2) That the following provision in reference to sale is in said deed of trust:

"If the said E. W. Sanderlin shall fail or neglect to pay interest on said bonds as the same may hereafter become due, or both principal and interest at the maturity of the bond or any part of either, then, on application of said James or John Parker, his assignee, or other person who may be entitled to the moneys due thereon, it shall be lawful and the duty of the said E. F. Aydlett to advertise in three or more public places in Pasquotank county aforesaid for a time not less than thirty days, therein appointing a day and place of sale, and at such time and place to expose said land at public sale, to the highest bidder, for cash, and upon such sale, to convey title to the purchaser. And the said Aydlett first retaining 5 per centum commissions on the sale of the whole of said land sold as a compensation for making such sale out of the proceeds of such sale, and apply so much of the residue as may be necessary to pay off and discharge said bond and all interest then accrued and due thereon, both those due and not due, and shall pay the surplus, if any remain, to said E. W. Sanderlin."

(3) That on the 4th day of November, 1899, the said E. F. Aydlett, trustee, assuming to act under said deed of trust, sold said land at public sale, and executed and delivered to the Elizabeth City Lumber Company, a corporation, the deed set out in the record, which deed purports to convey the pine timber 14 inches and more in diameter, or that may reach that size during 5 years, on the tract of land set out in the deed of trust, the deed from said Aydlett, trustee, reciting that the said Elizabeth City Lumber Company, grantee, "bid for the same the sum of $5,000, which was the last and highest bid, and the said Elizabeth City Lumber Company was declared the purchaser," and granting unto said Elizabeth City Lumber Company 5 additional years, if necessary, to cut and remove the timber upon the payment to James Parker and J. D. Parker of 6 per cent. interest on the $5,000 from the end of 5 years from date, and further granting rights of way over said lands.

(4) That on the same day as the conveyance by said Aydlett, trustee, of the timber to said Elizabeth City Lumber Company, as set forth in the next, preceding paragraph, the said E. F. Aydlett, trustee, executed and delivered a deed to James Parker and J. D. Parker for the tract of land mentioned in said deed of trust, excepting therefrom the pine timber described in the said conveyance from said Aydlett, trustee, to said Elizabeth City Lumber Company. The consideration expressed in said deed to James Parker and J. D. Parker is $7,460, and, as recited in said deed from said Aydlett, trustee--

"did not include the pine timber of 14 inches in diameter or more which was sold to the Elizabeth City Lumber Co. at the same time and immediately before the sale of the property hereinafter described, with the understanding that the said Elizabeth City Lumber Co. should have five years within which to cut and remove the said timber; and, whereas, the said bid was the last, highest and best bid, the said James and J. D. Parker were declared the purchasers."

(5) That at the time of said sale on November 4, 1899, neither installment of said indebtedness had fallen due, the first installment as provided in the bond and deed of trust maturing on August 6, 1900, 9 months and 2 days subsequent to the said sale to the said Elizabeth City Lumber Company and the said James and J. D. Parker, but that one or more semiannual payments of interest were past due and unpaid.

(6) That at the time of the execution of the deed of trust to E. F. Aydlett, trustee, on August 6, 1894, Geo. W. Sanderlin and wife, E. W. Sanderlin, with their family, were living in the city of Washington, District of Columbia.

(7) That Geo. W. Sanderlin died in Enoch Pratt's Hospital, near Baltimore, Md., on November 6, 1899, two days subsequent to the sale and conveyance of the land and timber by E. F. Aydlett, trustee, to James and J. D. Parker and Elizabeth City Lumber Company respectively.

(8) That Geo. W. Sanderlin at the time of his commitment to the Enoch Pratt Hospital, was mentally incompetent, and from the time he was committed to said hospital until his death, embracing a period of about 3 years, and for a year prior to his committal, he was not capable of transacting business; that he was mentally incompetent for 4 years before he died.

(9) That about a month before the death of Geo. W. Sanderlin he fell and broke his hip, his physical and mental condition thenceforth requiring the frequent attention of his wife, the said E. W. Sanderlin, at his bedside.

(10) That James and J. D. Parker, the cestui que trustent were, on November 4th, before the sale, made acquainted with the condition of Geo. W. Sanderlin, and were shown a letter received by the trustee, Aydlett, requesting a postponment of the sale; that the matter of postponing the sale was considered by the trustee and the cestui que trustent, and, after talking it over with them, the trustee sold the land and timber upon demand of the creditors, and executed the conveyances referred to in the record.

(11) That the expense of maintaining Geo. W. Sanderlin at the Enoch Pratt Hospital was more than $100 a month; and that E. W. Sanderlin had to keep boarders in order to enable the expense to be borne; and that it was necessary for three or four of the family to occupy one room in order to help, out of the rents received from the other portions of the house, to defray the hospital expenses, and to keep their children, girls, four in number, at school; and that because of the burdens incident to the hospital expense and caring for the family, they were living in straitened circumstances; and that this financial embarrassment and the causes thereof were, at the time of said attempted sale, well known to the said trustee, Aydlett, and to the cestui que trustent, James and J. D. Parker.

(12) That on the said day of the sale and prior thereto a representative of the Elizabeth City Lumber Company met James and J. D. Parker in the rear room of the law offices of the trustee, E. F. Aydlett, and it was then and there agreed that the Elizabeth City Lumber Company would take the timber on said lands at the sum of $5,000, and that the Parkers would take the land at $7,460. The trustee was not present, however, and knew nothing of this agreement until after the sale.

(13) That Mrs. E. W. Sanderlin had an offer from a person living in Philadelphia, who was negotiating, a short time prior to the foreclosure, for the purchase of the land at the price of $15,000, and the land and timber were sold for $12,460.

(14) That the trustee, E. F. Aydlett, was the attorney for Elizabeth City Lumber Company.

(15) That the trustee, E. F. Aydlett, was the general counsel for James and J. D. Parker, representing them in their business in this section.

(16) That the defendant and their ancestors, James and J. D. Parker, have been in possession of the lands from about November, 1899, and that Mrs. E. W. Sanderlin died in 1912.

Several of the plaintiffs testified that their mother did not know the land and timber were sold separately by the trustee, but they also said they never heard their mother speak of it.

The defendants offered seven or eight witnesses who were present at the sale, who testified that the land and timber were not sold separately, but as a whole, and the only evidence to the contrary is the recitals in the deeds...