Shelby Bldg. & Loan Ass'n v. Black, 305.
| Decision Date | 12 April 1939 |
| Docket Number | No. 305.,305. |
| Citation | 215 N.C. 400,2 S.E. 2d. 6 |
| Court | North Carolina Supreme Court |
| Parties | SHELBY BUILDING & LOAN ASS'N. v. BLACK. |
Appeal from Superior Court, Cleveland County; J. A. Rousseau, Judge.
Action by the Shelby Building & Loan Association against J. M. Black on a note secured by deed of trust on realty, instituted after foreclosure of the deed of trust. From a judgment for the plaintiff, defendant appeals.
Affirmed.
This is an action on a promissory note secured by deed of trust on real estate instituted after the foreclosure of the deed of trust securing said note.
The action was commenced by the issuance of a summons on August 28, 1937. The deed of trust was foreclosed by exposing the land for sale at public auction at the courthouse door, after due advertisement, on August 22, 1936, on which date the plaintiff became the last and highest bidder, which sale was confirmed by the Clerk of the Superior Court on September 7, 1936, and deed from Clyde R. Hoey, the trustee in the deed of trust, to Shelby Building & Loan Association, dated September 5, 1936, was delivered to said association.
The defendant pleaded in bar of plaintiff's right to maintain its action Section 1, Chapter 529, Public Laws 1933 (N.C. Code of 1935 (Michie) § 437(a), the portion of which germane to this action reads: "No action shall be maintained on any promissory note, * * * secured by a * * * deed of trust on real estate after the foreclosure of the * * * deed of trust securing the same, except within one year from the date of sale under such foreclosure, * * *."
The judge of the Superior Court held that the action was not barred by the statute and instructed the jury peremptorily so to answer the issue relative thereto. From judgment in favor of the plaintiff the defendant appealed, assigning errors.
Peyton McSwain, of Shelby, for appellant.
Joseph C. Whisnant, of Shelby, for appellee.
In the record it is stipulated that the only question involved on this appeal is whether the action is barred by the statute of limitation pleaded, Chapter 529, Pub. Laws 1933; and the answer to the question is dependent upon what is meant by the words "within one year from the date of sale under such foreclosure."
It is the contention of the defendant that the aforesaid words mean within one year from the date the property was exposed for sale at public auction, and that since this exposure was made on August 22, 1936, and this action was commenced on August 28, 1937, six days more than one year from the first date, the action is barred by the...
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... ... for the benefit of the plaintiff until a loan ... was obtained thereon and would then reconvey ... Shelby ... Building & Loan Assn. v. Black, 215 N.C ... ...
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North Carolina Joint Stock Land Bank Of Durham v. Bland
...sale to a deed from the Sheriff thereupon became absolute. Dillingham v. Gardner, 219 N.C. 227, 13 S.E.2d 478; Shelby Building & Loan Ass'n v. Black, 215 N.C. 400, 2 S.E.2d 6; Pringle v. Winston-Salem Building & Loan Ass'n, 182 N.C. 316, 108 S.E. 914, 19 A.L.R. 175. Thus, the right to the d......
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North Carolina Joint Stock Land Bank of Durham v. Bland
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...that a foreclosure sale "cannot be consummated" to fix rights until the expiration of the upset bid period. Building & Loan Assn. v. Black, 215 N.C. 400, 402, 2 S.E.2d 6, 6 (1939). Accordingly, Judge Small of the Eastern District of North Carolina U.S. Bankruptcy Court has determined that, ......