Whitehead v. Hellen
| Decision Date | 31 January 1877 |
| Citation | 76 N.C. 99 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM WHITEHEAD v. JOHN F. HELLEN. |
OPINION TEXT STARTS HERE
CIVIL ACTION for the recovery of land, tried at Fall Term, 1876, of PITT Superior Court, before Moore, J.
The defendant executed a mortgage deed to J. W. May, conveying the land in controversy. May assigned the note secured by the mortgage to the plaintiff, Whitehead. The plaintiff sold the land under a power contained in the deed and without a decree of foreclosure, and one Bernard bought as the agent of plaintiff. The plaintiff executed a deed to Bernard and Bernard reconveyed to plaintiff. The defendant insisted that the sale was void and passed no title, and asked to be allowed a day in Court to redeem said land. Judgment was rendered in favor of the plaintiff and the defendant appealed.
Mr. D. M. Carter, for the plaintiff .
No counsel for the defendant.
If the action had been by the mortgagee against the mortgagor, simply to get possession of the land, the defendant could not have resisted a recovery.
But the action is by an alleged purchaser claiming an absolute estate, under a sale made by the mortgagee by virtue of a power of sale conferred in the mortgage deed. The pleadings present the important question: Can an equity of redemption be foreclosed in this shorthand way? In other words, can the mortgagee, under a power of sale, buy the land of himself?
To make a valid sale there must be two parties, a vendor and a vendee; a man cannot sell to himself.
Suppose a mortgagee under a power of sale offers the land for sale and bids it in; he acts for the benefit of the trust fund confided to him, and the matter stands as before. The debtor's “equity of redemption” stands as before, because he has done nothing to release or to extinguish it. Indeed, Courts of Equity look with jealousy upon all dealings between trustees and their cestuis que trust; and if this mortgagor had by deed released his equity of redemption, we should have required the plaintiff to take the burden of proof and satisfy us that the man, whom he had in his power, manacled and fettered by a mortgage and a peremptory power of sale, had, without undue influence and for fair consideration, executed a release of his right to redeem the land.
In our case, so far from a release by the defendant of his equity of redemption, he avers that he is still entitled to it, and prays that the land may be sold by a Commissioner of the Court, unless he is able to pay off the mortgage debt at a time to be fixed by the Court.
This prayer is a reasonable one, provided the deed of the plaintiff to Bernard and the deed of Bernard to plaintiff, have not by the forms of legal conveyances, shut the door to all inquiry into the matter.
“Once a mortgage, always a mortgage,” is a maxim in equity, and our question is, how has the defendant lost his equity of redemption? what price has he been paid for it?
The plaintiff's right hand says to his left hand, “I will sell you Hellen's equity of redemption for $950, to be credited on the mortgage notes.” “Agreed,” says the left hand, “I will hold the balance of the debt over him.”
If Hellen had by deed surrendered his equity, in consideration of a release of the...
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Mills v. Mutual Building & Loan Ass'n
...of redemption apparently was first declared (inferentially) by this Court in Lee v. Pearce, 68 N.C. 76, and in express terms in Whitehead v. Hellen, supra. The principle was fully discussed and reaffirmed in McLeod Bullard, supra. The restrictions upon the creditor in respect to the securit......
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Rowland Hardware & Supply Co. v. Lewis
... ... Pate and the judgment debtor Gaitley. McLeod v ... Bullard, 86 N.C. 210; Whitehead v. Hellen, 76 ... N.C. 99. Pate, as mortgagee, held an interest in the property ... which made him a trustee for the benefit of the mortgagor, ... ...
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Warren v. Susman
... ... indirectly by an agent. It is the same in equity as if it had ... bought in its own name. Whitehead v. Hellen, 76 N.C ... 99. The plaintiff could elect to have the sale set aside and ... the property returned to the trust fund, or recover of the ... ...
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Merryman v. Blount
...for their benefit. 32 Ill. 13; 8 Fed. Cases, 443; 4 Minn. 32; 58 Mo. 537; 107 N.C. 552; 9 R. I. 225; 23 Ark. 622; 52 Ill. 130; 49 Mo. 389; 76 N.C. 99; 126 N.C. 525; 80 Miss. 31. There is distinction between a mortgagee and the beneficiary in law. See cases supra; also 121 Ala. 191; 2 Perry,......