Clark v. Fairly, 175 N.C. 342 (1918)

April 10, 1918 · Supreme Court of North Carolina

175 N.C. 342

C. H. CLARK v. D. M. FAIRLY.

(Filed 10 April, 1918.)

1. Costs — Mortgages—Statutes—Foreclosure.

The clerk of the Superior Court may foreclose a mortgage on land given by plaintiff to secure costs of his action when the costs are awarded against him, or the clerk may report the matter to the court for a decree of sale by himself, the latter being the better practice to insure a safer title and prevent a needless sacrifice. Revisal, sec. 266.

2. Same — Court’s Supervision — Payment of Costs.

Where a mortgage on land has been given by the plaintiff to secure the costs in his action, which are awarded against him, and the Superior Court, in term, acting through the presiding judge, has duly acquired jurisdiction to decree foreclosure, it is his duty to supervise the sale and see that the land brings a fair price; and when such sale has not been made accordingly, he may set aside the sale, and permit the plaintiff to pay the costs properly chargeable against him. Revisal, sec. 266.

3. Costs — Mortgages—Foreclosure—Confirmation—Statutes.

Where the Superior Court has assumed jurisdiction to decree foreclosure of a mortgage given by the plaintiff to secure the costs of his action, it is proper for the court to confirm the sale, and possibly it is necessary for him to do so. Revisal, sec. 266.

4. Costs — Mortgages—Foreclosure—Decree Set Aside — Powers of Court.

A decree of confirmation of the sale of lands to pay' the costs of an action under a mortgage given to secure them, Revisal, sec. 266, may be set aside by the judge during the term of the Superior Court at which it was entered.

MotioN to set aside sale of land, beard by consent by Bond, J., at November Term, 1917, of CumbeklaND.

Tbe court found tbe facts and rendered judgment setting aside tbe sale. Defendant appealed.

Hinsdale and Shaw for plaintiff.

H. G. Davis and Murmy Allen for defendant.

BbowN, J.

Tbe substance, of tbe judge’s findings is tbat plaintiff executed a mortgage upon certain land to secure costs in lieu of prosecution bond in tbis action. Revisal, 266. Tbe plaintiff was cast in tbe action and judgment rendered against bim for costs. Upon application of tbe clerk at August Term, 1917, a decree of sale for foreclosure was entered by tbe court. Tbe land was sold accordingly by tbe clerk and purchased for $400 by defendant. Tbe sale was reported by tbe clerk and confirmed at October Term, 1917.

At same term of court a motion was made by plaintiff to .set aside tbe order of confirmation upon tbe ground of gross inadequacy of price; at same time plaintiff offered to pay tbe judgment for costs in full and all costs and expenses of sale.

His Honor found that the sale was duly advertised in accordance with law, but tbat plaintiff bad no actual knowledge of it and tbat tbe defendant in tbe action purchased tbe land at less than one-third of its actual value. Tbe judge set aside tbe sale and entered judgment as set out in record.

It must be admitted tbat if tbe Superior Court in term, acting through tbe presiding judge, bad jurisdiction to enter tbe decree of foreclosure of tbe mortgage given for costs, it bad tbe power and it was its duty to supervise tbe sale and see tbat tbe land brought a fair price. Tbe right to set aside, at same term when made, an order -of confirmation or any other decree is unquestioned.

We are of opinion tbat where a mortgage or deed in trast is made to a clerk of tbe Superior Court to secure costs under Revisal, 266, conferring upon tbe clerk a power of sale in default of payment of costs when adjudged against the party giving tbe mortgage, tbe clerk can exercise tbe power or be may report the matter to tbe court for a decree of sale, as was done in tbis case.

Tbe latter is undoubtedly tbe safest course and tbe better practice, as it insures a safer title and a better price and prevents a needless sacrifice, as would have been tbe case in tbis instance.

"Where tbe court assumes jurisdiction and undertakes to foreclose by decree, confirmation is of course proper and possibly necessary.

Under such conditions, the parties are all before the court and it has jurisdiction over' the res, the land. We see no reason why such mortgage should not be foreclosed by the clerk by judicial decree in the nature of foreclosure proceedings, and under the supervision and control of the court.

We have a precedent directly in point in Ryan v. Martin, 103 N. C., 282, where it is held that a mortgage given under section 120 of the Code (now 266, Revisal), in lieu of prosecution bond, may be foreclosed by the court upon motion upon notice, in the original action.

In order to understand and comprehend the syllabus to this ease, and its bearing upon the case at bar, it is necessary to consult the original record.

The judgment of the Superior Court is

Affirmed.