The facts are to be found in tbe judgment of tbe Superior Court, which will be reported herewith.
Let it be observed in limine tbat W. D. Wooten and wife, Elizabeth Wooten, makers of tbe deed of trust, and whose equity of redemption in tbe locus in quo is sought to be extinguished and cut off by tbe judgment rendered herein, are not parties to this proceeding. Tbe judgment, therefore, would not be binding on them. Jones v. Williams, 155 N. C., 179.
Tbe purpose and intent of C. S., 2591 is very well interpreted and declared by Clark, C. J., in Pringle v. Loan Asso., 182 N. C., 316, as follows :
“Chapter 146, Laws 1915, and amendments, now C. S., 2591, was intended for tbe protection of mortgagors where sales are made under *376a power of sale without a decree of foreclosure by the court. In the latter cases there was always an equity to decree a resale when a substantial raise in the bid, usually 10 per cent, had been deposited in court. There being no such protection as to mortgages with power of sale, this statute was passed to extend to mortgagors, whose property had been sold under power of sale without a decree of foreclosure, the same opportunity of a resale when there has been an increased bid of 10 per cent when the bid at the first sale did not exceed $500, and of 5 per cent when the bid of the first sale was more than $500.
“This statute has been construed at this term, In re Sermons, ante, 122, not to require a report to the clerk of every sale made under a mortgage with power of sale, but that in all such cases if the prescribed amounts of the raise in bid is guaranteed, or paid, to the clerk he shall require the mortgagee or trustee to advertise and resell on 15 days notice. In short, the condition of a mortgagor in a mortgage with a power of sale is assimilated to the condition of property sold under a decree of foreclosure so far as the right to set aside the bid at the first sale and to require a resale.”
And in the ease of In re Sermon's Land, 182 N. C., p. 128, it was said: “The statute, sec. 2591, as we have seen, in express terms provides that any and all sales of this character shall remain 'unclosed for ten days,’ but it confers no power on the clerk to make any orders in the matter except in case of an increase of bid, nor is any report required to be made in any other instance. That and that alone is the basis for his interference in sales of this kind. It might be well in the case presented if the law should give the clerk jurisdiction to make the order that justice and right would require, but thus far the statute has not done so, and we are not at liberty to go beyond the statutory provision.”
See, also, the case of In re Ware, 187 N. C., 693, where the statute was again considered.
It will be observed that the upset bid of Mrs. Nora Fletcher was filed on 18 October, 1923, the last day open for making the same. It was accepted by the clerk, and a resale ordered. This, under the statute, insured another sale of the property. To strike out the order, 11 days thereafter, and declare the E. E. Powell bid final and binding, would be to deprive the mortgagors of any further rights under the statute. The title offered is not sufficient, under the facts of the present record, to extinguish the equity of redemption of W. D. Wooten and wife.
Error.
Yaesee, I., not sitting and taking no part in the decision of the case.