Gambill v. Bare, 32 N.C. App. 597 (1977)

March 16, 1977 · North Carolina Court of Appeals · No. 7623DC771

32 N.C. App. 597

SIDNEY B. GAMBILL and wife, MYRTLE R. GAMBILL v. W. F. BARE and wife, EDITH LEE BARE

No. 7623DC771

(Filed 16 March 1977)

Mortgages and Deeds of Trust § 32— note and deed of trust — no mention of purchase money for real estate — suit on underlying debt proper

Where the note and deed of trust in question did not indicate that the indebtedness was for the balance of purchase money for real estate, G.S. 45-21.38 did not, even by implication, apply to prohibit plaintiff mortgagee from suing defendant mortgagor on the underlying debt or note.

Appeal by defendant from Osborne, Judge. Judgment entered 25 June 1975 in District Court, Ashe County. Heard in the Court of Appeals 8 March 1977.

Plaintiffs instituted this action seeking a judgment in 'per-sonam against defendants for the balance allegedly due to plaintiffs on a promissory note. Defendants admit the execution and regularity of the note and that it is unpaid. By way of defense, the defendants aver, and it is admitted, that the note is one of a series of notes representing the purchase price of real property and being secured by a deed of trust encumbering the real property purchased by the defendants from the plaintiffs. Summary judgment was granted to the plaintiffs. Defendants appealed.

Bryan & Kilby, by John T. Kilby, for plaintiff appellees.

Vannoy & Reeves, by Wade E. Vannoy, Jr., for defendant appellants.

ARNOLD, Judge.

Defendants argue that G.S. 45-21.38, by implication, will not allow a mortgagee to sue his mortgagor on the underlying debt or note for purchase money for real property, and that the mortgagee can only foreclose on the deed of trust. The statute provides:

“In all sales of real property by mortgagees and/or trustees under powers of sale contained in any mortgage or deed of trust executed after February 6, 1933, ... , to secure to the seller the payment of the balance of the purchase price of real property, the mortgagee or trustee or holder of the notes secured by such mortgage or deed of trust shall not be entitled to á deficiency judgment on account of such mortgage,-deed of trust or obligation secured by the same: Provided, said evidence of indebtedness shows upon the face that it is for the balance of purchase money for real estate. ...” (Emphasis added.)

A strict reading of G.S. 45-21.38 reveals that this statute does not apply unless the “evidence of indebtedness,” i.e., the note and deed of trust, shows on its face that the debt is for the purchase money for real property. Nowhere on this note or deed of trust is it indicated that the indebtedness “is for the balance of purchase money for real estate. ...” Therefore, G.S. 45-21.38 does not apply, even by implication.

No genuine issue of material fact exists. The granting of summary judgment to plaintiff is

Affirmed.

Chief Judge Brock and Judge Parker concur.