Sanders Et Ux v. May

• Decision Date: 28 February 1917
• Docket Number: (No. 59.)
• Citation: 91 S.E. 526
• Court: North Carolina Supreme Court
• Parties: SANDERS et ux. v. MAY et al.

91 S.E. 526

(173 N.C. 47)

SANDERS et ux.

v.MAY et al.

(No. 59.)

Supreme Court of North Carolina.

Feb. 28, 1917.

Appeal from Superior Court, Nash County; Stacy, Judge.

Suit by J. J. Sanders and wife against A. F. May and another, as administrators of W. R. Griffin, deceased, in behalf of the Citizens' Bank of Spring Hope, wherein B. E. Morgan, trustee, petitioned for leave to intervene. Decree denying the petition and dismissing the suit, without prejudice to separate suit by Morgan, and plaintiffs and intervener appeal. Affirmed.

Jacob Battle,, of Rocky Mount, for appellants.

O. B. Moss, of Spring Hope, and F. S. Spruill, of Rocky Mount, for appellees.

BROWN, J. It appears from the pleadings and affidavits in the record that on January 25, 1908, plaintiffs borrowed from the defendant bank $2,000, and gave to secure it a deed of trust to W. H. Griffin, trustee, conveying three lots or parcels of land in Spring Hope, described in the pleadings. W. H. Griffin, trustee, died before the foreclosure of the deed of trust and A. F. May and another qualified as his executors. The plaintiffs kept the interest paid up on said loan until on or about April 19, 1913, at which time the bank demanded its money, no part of which, except the interest, had been paid and all of which was long since due.

There were negotiations between plaintiffand one H. L. Griffin for the purchase of one of the lots conveyed in the deed in trust, viz.: Lot No. 112, block 2, in the plot of Spring Hope. At request of the plaintiff this lot alone was sold under the power contained in the deed to make title, and according to affidavit of Attorney Moss, he bid it off at $2,000 at plaintiff's request for Griffin, who, as plaintiff stated to Moss, had agreed to buy the property at that price. Griffin refused to take the property, and we find no legal contract binding him to do so. The bank afterwards had the three lots advertised at foreclosure sale to realize on its debt.

This action was brought by plaintiffs to enjoin perpetually any foreclosure and to cancel the deed in trust upon the ground that the debt was discharged by the first sale. We see nothing to support that claim, but in any event the matter was heard by Carter, Judge, on June 25, 1915, who rendered judgment passing upon all the contentions of the parties to the action, and dissolved the injunction. This judgment is set out in the record and appears to dispose of the rights of all parties to the action. No appeal was taken.

The three...