Shew v. Call

• Decision Date: 01 December 1896
• Citation: 26 S.E. 33,119 N.C. 450
• Court: North Carolina Supreme Court
• Parties: SHEW. v. CALL.

26 S.E. 33

119 N.C. 450

SHEW.

v.CALL.

Supreme Court of North Carolina.

Dec. 1, 1896.

Mortgage to Clerk of Court — Foreclosure — Purchase bt Mortgagee — Mortgage by Husband and Wife—Exoneration of Wife's Land —Action bt Wife to Cancel Sale—Estoppel to Question Title.

1. Where land mortgaged to a clerk of court to secure a fine and costs is sold by the clerk under a power in the mortgage, a deed executed by him after he has gone out of office vests no title in the purchaser.

2. A mortgagee is a trustee, and cannot purchase at his own sale. If he does, he is still a trustee.

3. A married woman is not estopped to question the title of a grantee by the fact that she is in possession of the land with her husband, who is the grantee's tenant.

4. Where a husband's land and the land of his wife are both included in a mortgage to secure the husband's debt, his land should be first sold in exoneration of the wife's land.

5. Where a husband's land and the land of his wife are both included in a mortgage to secure the husband's debt, and the mortgage sale is illegal, the wife may alone maintain an action to have the purchaser's deed declared void, not only as to her property, but as to that of her husband also.

Appeal from superior court, Wilkes county; Norwood, Judge.

Action by Martha M. Shew against M. C. Call to cancel a deed. Judgment for plaintiff, and defendant appeals. Amended and affirmed.

W. W. Barber, for appellant.

Glenn & Manly, for appellee.

FURCHES, J. This case comes to this court by appeal of defendant from the judgment of the court on a case agreed, from which it appears that the plaintiff is the wife of Peyton Shew; that she was the owner in her own right of all the lands mentioned in the complaint, except a tract of about 39 acres, which was the husband's;, that to secure a bill of costs and a fine of $35 she joined her husband in making a mortgage to J. S. Call, clerk, to secure the payment of said fine and costs; that soon after that said Call went out of office, and J. P. Somers was qualified and inducted into office as his successor; that said Somers, as clerk, advertised said land, and sold the same, when said Call became the purchaser thereof at the price of one dollar for each tract; that soon after said sale Somers was removed from said office without havingmade a deed for said land, but after he went out of office did make a deed to said Call for the same; that after said sale, Peyton Shew, the husband of plaintiff, being in possession of said land, rented the same from said Call, and has paid him rent thereon, and is still in possession; that J. S. Call is dead, and the defendant is the owner of whatever estate he had in said land, as his devisee. The complaint alleges that the land is worth $1,000 or more, and this is not denied in the answer; and it was so argued by plaintiff's attorney in this court, and not denied by the attorney of defendant. The defendant contended that the sale by Somers was fair and regular; that Call, though named as mortgagee in the mortgage, and the power of sale given to him, it was as clerk, and, as he had gone out of office, he could not execute the power; that Somers was the proper party to do so, and Call had the right to become the purchaser; and that the deed made to him by Somers after he went out of office conveyed the estate in the land to him. But the principal question discussed and relied on by defendant was that of estoppel existing between landlord and tenant, —that, the husband of the plaintiff having rented of defendant's devisor, she was estopped to deny defendant's title, while still remaining in possession. A mortgagee is a trustee, and is not allowed to purchase at his own sale. Kornegay v. Spicer, 76 N. C. 95. If a mortgagee purchases at his own sale, he is still a trustee. Whitehead v. Hellen, Id. 99. The right to give a mortgage to secure a fine and costs is a statutory right, and the statutory provision must be observed in its execution, to make it effective. And statutory powers of sale given to an officer must be strictly observed to confer title. Taylor v. Allen, 67 N. C. 346. A sheriff, whose term of office had expired, could not execute a deed for land sold while he was in office until authorized to do so by statute. Section 1267, Code. This statute does not extend to clerks, and they cannot exercise this power after they go out of office. Taylor v. Allen, supra. Mortgages with power of sale are not looked upon with disfavor, as they once were, but courts of equity, or of equitable jurisdiction, will still guard the rights of the mortgagor with jealous care. And, where manifest wrong and oppression are made to appear, the court will give relief. Mosby v. Hodge, 76 N. C. 387.

The only remaining question to be considered is the question of estoppel. It...