Biggs v. Oxendine, 207 N.C. 601 (1935)

Jan. 28, 1935 · Supreme Court of North Carolina

207 N.C. 601

K. M. BIGGS, Trustee, v. WALTER L. OXENDINE.

(Filed 28 January, 1935.)

1. Ejectment A a—

In an action in ejectment in which both parties claim title to the land in controversy from a common source, plaintiff may connect defendant with the common source of title and show in himself a better title from that source.

2. Mortgages H h — The law presumes regularity in the execution of the power of sale in a deed of trust.

The law presumes regularity in the execution of the power of sale in a deed of trust duly executed and regular upon its face, and the recital of proper advertisement in the trustee’s deed to the purchaser at the sale is prima facie evidence of proper advertisement, and the burden is on the party attaching the validity of the sale to show failure of the trustee to properly advertise the sale.

3. Same—

It is not required that the trustee in a deed of trust give notice of sale under power contained in the instrument to the mortgagor or the purchaser of the equity of redemption, nor is the notice of sale defective for the sole reason that the name of the mortgagor is not recited therein.

4. Ejectment C h: Mortgages C c—

Where plaintiff in ejectment claims title as purchaser at the foreclosure sale of a registered deed of trust against the property, defendant’s subsequently registered contract of conveyance from the mortgagor is properly excluded from evidence, plaintiff’s prior registered deed of trust being notice to the world.

5. Mortgages H li—

Where foreclosure under power in a deed of trust is advertised according to law, the recital in the trustee’s deed to the purchaser at the sale that the advertisement was printed in one newspaper published in the county, whereas in fact the advertisement was published in another newspaper published in the county, is not a vital defect.

Clarkson, J., concurs in result.

Civil actioN, before Cranmer, J., at April Civil Term, 1934, of EOBESON.

J. TL Hagen and wife were indebted to I. P. Graham and wife in tbe sum of $357.76. On 28 May, 1927, tbe said Hagen and wife executed a promissory note for said indebtedness, due 1 November, 1927, and in order to secure tbe same duly executed and delivered a deed of trust upon tbe property to E. M. Johnson, trustee, wbicb said deed of trust was duly recorded on 28 May, 1927. Default was made in tbe payment of said indebtedness, and thereafter, to wit, on 8 December, 1930, E. M. Johnson, trustee, executed and delivered to tbe plaintiff K. M. Biggs, trustee, a deed of conveyance for said property. This deed recites tbe mortgage given by Hagen on 28 May, 1927, and tbe registration thereof in Book 76, page 193, in tbe office of tbe register of deeds for Robeson County, and tbat there was default in tbe payment of tbe note secured thereby, and tbat tbe lands described therein were “duly advertised for sale by publishing a notice in tbe Rohesonicm, a newspaper published in tbe town of Lumberton, North Carolina, for a period of thirty days, and by publishing a notice of said sale at tbe courthouse door and three other public places in Robeson County.” Tbe deed further recites tbat pursuant tp such notice tbe lands were duly sold at public auction at tbe courthouse door on 24 November, 1930, when and where tbe plaintiff became tbe purchaser for tbe sum of $300.00, etc. Tbe sale was made under a second deed of trust. Hagen, tbe grantor in tbe deed of trust, remained in possession of tbe land until bis death in August, 1933.

On 25 November, 1933, tbe plaintiff brought a suit'in ejectment against tbe defendant, alleging tbe execution and delivery of tbe deed of trust and tbe sale thereunder, together with deed from Johnson, trustee, to tbe plaintiff, and further alleging tbat after tbe death of Hagen, tbe defendant, “without tbe knowledge or consent of tbe plaintiff, entered upon tbe land, . . . and thereafter forbade ... a tenant of tbe plaintiff, and in possession of said land, to continue to use tbe stables, . . . and by threats, commands, and acts has interfered with tbe work of said tenant, so tbat tbe said'tenant has been unable and is now unable to continue to fulfill and carry out bis obligations as tenant,” etc.- Upon such allegation tbe plaintiff prayed tbat be be declared to be tbe owner and entitled to tbe possession of tbe land, etc.

Tbe defendant answered denying tbat tbe plaintiff was tbe owner of tbe land, but admitting tbat be was in possession thereof. He also denied tbat tbe sale under tbe deed of trust was proper or valid, and alleged tbat there was a written contract between Hagen and tbe defendant, dated 28 May, 1927, providing, among other agreements, “tbat in tbe event of tbe death of J. H. Hagen before either of tbe above-mentioned mortgages bad been paid in full, or in tbe event tbe said J. H. Hagen is unable to pay any installment of principal or interest on either of said mortgages, . . . tbe said fifty-eight acres above mentioned shall become tbe property of said Walter L. Oxendine,” etc. This contract was duly recorded on 15 July, 1927.

At tbe trial tbe plaintiff offered tbe deed of trust from Hagen and wife to Johnson, trustee, and the-deed from Johnson, trustee, to tbe. plaintiff, and rested. Tbe defendant attempted to offer evidence tending to show: (a) Tbat be bad no notice of tbe advertisement of tbe property; (b) tbat tbe same was advertised in tbe Scottish Chief, a newspaper published in Robeson County, although tbe deed from tbe trustee recited that tbe notice of sale bad been published in the Robe-sonian, a newspaper published in Robeson County. It was admitted by the plaintiff “that the advertisement offered in evidence was published ... in the Scottish Chief, a newspaper published in Robeson County.” (c) That Biggs, the plaintiff, knew about the contract or agreement between Hagen and the defendant; (d) that he owned land near the land in controversy; (e) that he had a written contract with Hagen with reference to the land, hereinbefore referred to, by virtue of which he claimed title.

The trial judge excluded testimony relating to the matters referred to, and the defendant took various exceptions to such rulings.-

Two issues were submitted to the jury, as follows:

1. “Is plaintiff the owner and entitled to the possession of the lands described in the complaint?”

2. “Does defendant unlawfully withhold the possession?”

The jury was instructed to answer the issues in favor of the plaintiff, and from judgment upon the verdict the defendant appealed.

Varser, McIntyre & Henry for plaintiff.

McNeill & McKimmon and David H. Fuller for defendant.

BeogdeN, J.

This is an action in ejectment and both parties claim title to the land in controversy from a common source. Under such circumstances the “plaintiff may connect the defendant with a common source of title and show in himself a better title from that source.” Mobley v. Griffin, 104 N. C., 113, 10 S. E., 142; Ricks v. Brooks, 179 N. C., 204, 102 S. E., 207; Moore v. Miller, 179 N. C., 396, 102 S. E., 627. Pursuant to the accepted principle so established, the plaintiff offered the deed of trust from Hagen to Johnson, trustee, which was in due form, properly executed.and duly recorded on 28 May, 1927, together with the deed from Johnson, trustee, dated 8 December, 1930, and duly recorded on 5 May, 1932. The law presumes regularity in the execution of the power of sale in a deed of trust duly executed and regular upon its face; and if there is any failure to advertise properly, the burden is on the attacking party to show it. Jenkins v. Griffin, 175 N. C., 184, 95 S. E., 166; Dumber Co. v. Waggoner, 198 N. C., 221, 157 S. E., 193; Phipps v. Wyatt, 199 N. C., 727, 155 S. E., 721. Furthermore, the recital of proper advertisement in a deed made in the exercise of such power of sale is prima facie evidence of such fact. Brewington v. Hargrove, 178 N. C., 143, 100 S. E., 308.

The defendant offered no evidence of fraud, suppressed bidding, or other facts cognizable by a court of equity. While it is proper and desirable for a trustee or a mortgagee to give notice of sale to the mortgagor, nevertheless such notice is not required. Call v. Dancy, 144 N. C., 494, 57 S. E., 220. Nor is a notice of sale defective for the sole reason that the name of the mortgagor is not recited in the notice, which is otherwise correct and formal.

The ruling of the trial judge in excluding the contract between the defendant and Hagen, the mortgagor, is sustained for the reason that the deed of trust through which the plaintiff derives title was recorded prior to the contract between Hagen and the defendant, and such registration is notice to the world.

The deed from the trustee to the plaintiff recites that the notice of sale was published in the Robesonian, and at the trial it was admitted that the land was advertised in the Scottish Chief, both newspapers being published in Robeson County. There is no evidence that the notice of sale was not published in the Robesonian, as recited in the deed; but if, as a matter of fact, the said notice was duly published in a newspaper as required by law, the recital in the deed of a different newspaper would not constitute a valid defect.

In the last analysis the plaintiff held a deed for the premises, complete and regular upon its face, reciting the performance of all legal requirements in conducting the sale, and the defendant proffered no testimony or evidence tending to impeach the sale or to overthrow the presumption of regularity, and therefore the Court is of the opinion that the rulings of the trial judge were correct.

Affirmed.

Clareson, J., concurs in result.