Mills v. Mills, 204 N.C. 726 (1933)

June 14, 1933 · Supreme Court of North Carolina

204 N.C. 726

J. L. MILLS, Jr., v. ROZENA MILLS et al.

(Filed 14 June, 1933.)

Appeal and Error K to — Judgment in this case, evidently entered under misapprehension of facts, is vacated and the cause remanded.

In this case the mortgagor sought to enjoin foreclosure under the power of sale contained in the instrument, and to have the land sold, if at all, by decree of the court. The trial court dissolved a temporary order entered in the cause, and decreed foreclosure at instance of mortgagor over objection of mortgagee without adequate pleading or showing, and later entered supplemental order attempting to correct some of the findings of fact but reaffirming the court’s original conclusions. On appeal the judgment and its attempted correction are vacated, and the cause remanded for further i>roceedings as to justice appertains.

Appeal by plaintiff from Grady, J., at Chambers, Clinton, N. 0., 30 December, 1932.

Civil action by mortgagor to restrain sale of land under foreclosure of deed of trust, to declare attempted sale thereunder void, to enjoin delivery of deed, and to have property sold, if sold at all, by order of a court of equity. The mortgagee seeks to proceed under the power of sale contained in the deed of trust.

Temporary restraining order issued 1 December, 1932, by Judge Harris, returnable before Judge Grady, resident judge, at chambers in Clinton, 23 December, -1932.

On 26 December, Judge Grady dissolved the temporary injunction, ordered that deed be tendered purchaser at sale and upon failure of purchaser to comply with bid, a commissioner was appointed to make sale after thirty days notice, etc. The defendant does not ask. for foreclosure in equity, but resists it.

On 30 December, 1932, a supplemental order was entered by Judge Grady attempting to correct some of the findings of fact set out in his first judgment, and reaffirming his original conclusions.

Plaintiff appeals, assigning errors.

Ward & Ward for plaintiff.

No counsel appearing for defendants.

Stacy, C. J.

As the judgment of 26 December, 1932, went beyond the purview of the case, in that, foreclosure was decreed at instance of mortgagor over objection of mortgagee, without adequate pleading or showing, and was evidently entered on a misapprehension of the facts— later attempted to be corrected — it would seem that, in order to preserve the rights of the parties, the judgment ought to be stricken out, as well as its attempted correction.

The judgment, therefore, will be vacated, and the cause remanded for further proceedings as to justice appertains and as the rights of the parties may require.

Error.