Parrott v. Hardesty, 169 N.C. 667 (1915)

Oct. 20, 1915 · Supreme Court of North Carolina

169 N.C. 667

JAMES F. and W. E. PARROTT v. FANNIE HARDESTY et al.

(Filed 20 October, 1915.)

1. Judicial Sales — Mortgages—Equity of Redemption — Purchaser—Rights to Possession.

The equity of redemption of a mortgagor of lands is subject to sale under execution under a judgment obtained against him, and the sheriff’s deed made in pursuance thereof passes his interest to the purchaser and enables the latter to maintain his action to recover the lands from the mortgagor or his assignee.

2. Same — limitation of Actions — Adverse Possession — Evidence.

Where the purchaser of land sold under execution acquires the sheriff’s conveyance of the equity of redemption, and the right to recover possession unless the same is barred by the adverse possession of one holding under a deed from the mortgagor and the note and mortgage assigned to him by the mortgagee, and it appears that the deed was executed within five years from the commencement of the action and that the assignment of the note and mortgage did not purport to operate upon the land, evidence of such adverse possession is held insufficient when the-claimant, though testifying that he had lived on the land for about eight years, and farmed it five years before he came into possession of it, does not state the character of the possession he had held, and the time elapsing between the execution of his deed and the time the action commenced, being insufficient.

8. Appeal and Error — Assignment of Error — Eules of Court — Counsel — Waiver.

The rule requiring the assignment of errors in the record on appeal is for the benefit of the Court, and counsel cannot waive it.

Appeal by defendant from Connor, J., at tbe May Term, 1915, of CRAVEN.

Action to recover land. Prior to 27 August, 1892, B. B. Mallison was tbe owner of tbe land in controversy, and on that day be conveyed tbe same to Tbe Meadows Company by mortgage deed, to secure a debt therein set forth. On 1 January, 1906, tbe plaintiff and bis brother obtained a judgment against said Mallison which was duly docketed in tbe county where tbe land is situate. On 10 February, 1908, tbe said Mallison executed a deed to tbe defendant Mary F. Hardesty, purporting to convey said land, and on 10 February, 1908, Tbe Meadows Company assigned tbe debt and mortgage held by it to said Mary E. Hardesty, but this assignment did not profess to act upon tbe land described in tbe mortgage. Execution was issued upon tbe judgment obtained by tbe plaintiff and bis brother, tbe land was sold thereunder and tbe plaintiff became tbe purchaser, and a deed was executed to him in September, 1911.

This action was commenced 15 December, 1913.

Tbe only evidence as to who has been in possession of tbe land is that of E. H. Meadows, who testified: “My recollection is that tbe rent came to us through Mallison up to tbe time this woman bought tbe mortgage. She may have paid it for Mallison,” and tbe evidence of L. H. Hardesty, who testified: “I know tbe land described in tbe complaint ; my wife and I live on it; we have been living there about eight years; I farmed it five years before I came into possession of it. We did not pay Mallison anything for tbe deed made for tbe land.”

There was a verdict and judgment for tbe plaintiff, and tbe defendant appealed, presenting only one contention in bis brief, and that is that tbe possession by tbe defendants bars tbe plaintiff’s right of recovery, and if not, that tbe defendant as tbe purchaser of tbe note and mortgage of Meadows Company is in tbe rightful possession of tbe land and cannot be dispossessed by tbe plaintiff.

Guión <& Guión for plaintiff.

W. D. Mclver for defendants.

Allen, J.

When the plaintiff procured bis judgment tbe defendant therein was tbe owner of tbe equity of redemption in tbe land, and this was tbe subject of sale under execution. S. v. Pool, 27 N. C., 105; Mayo v. Staton, 137 N. C., 670. The deed of the sheriff made pursuant to'the sale passed this equity of redemption to tbe plaintiff, and was sufficient to enable tbe plaintiff to maintain bis action to recover possession of tbe land against tbe mortgagor, and tbe position of tbe defendant, wbo is tbe .assignee of tbe mortgagor, is no better tban bis. Davis v. Evans, 27 N. C., 532; Black v. Justice, 86 N. C., 512.

In tbe last case, after citing tbe casé of Davis v. Evans, tbe Court says: “Chief J ustice Buff in, speaking for tbe Court in tbat case, says: ‘"We consider tbe equity of redemption wben sold under execution, a legal interest to tbe extent, at least, of enforcing it by tbe recovery of possession from tbe mortgagor himself.’ ” It follows, therefore,' tbat tbe plaintiff bas shown title to tbe land in controversy, and was entitled to recover possession unless there is evidence of á possession in tbe defendants tbat would bar tbe plaintiff’s right of action, and in our opinion it is insufficient to do so.

Tbe character of tbe possession of tbe husband of tbe. feme defendant prior to tbe execution of tbe deed to her is not shown, and so far as tbe record discloses be was not bolding adversely to any claim, and be may have been in possession by permission or as tenant, and tbe possession by tbe defendants since tbe execution of tbe deed cannot be more tban five years, as tbe deed was executed in 1908 and tbe action was commenced in 1913.

Nor can tbe claim of tbe defendant tbat she is rightfully in possession as mortgagee be sustained, because it is expressly stated tbat tbe assignment of tbe note and mortgage to her did not purport to operate upon tbe land. Williams v. Teachey, 85 N. C., 402; Dameron v. Eskridge, 104 N. C., 621; Morton v. Lumber Co., 144 N. C., 31; Weil v. Davis, 168 N. C., 302. This is tbe only question presented in tbe brief, and it does not appear tbat tbe defendant asserted any claim as assignees of tbe note and mortgage of Meadows Company, except tbat it entitled her to retain possession against tbe plaintiff.

We call attention to tbe fact tbat there is n0‘ assignment of error in tbe record, and tbat tbe rule requiring assignments to be made is for tbe benefit of tbe Court and to enable it to properly examine cases upon appeal, and tbat counsel cannot waive tbe requirement of tbe rule.

No error.