Pendergrast v. Home Mortgage Co., 211 N.C. 126 (1937)

Jan. 6, 1937 · Supreme Court of North Carolina

211 N.C. 126

F. A. PENDERGRAST v. THE HOME MORTGAGE COMPANY, NORTH CAROLINA MORTGAGE CORPORATION, and JEFFERSON E. OWENS, Trustee.

(Filed 6 January, 1937.)

Mortgages § 131»—

A trustee, duly substituted for the original trustee under the provisions of the deed of trust and the statute, may execute deed to the purchaser at a sale duly conducted by the original trustee. N. 0. Code, 2583 (a).

Appeal by plaintiff from Williams, J., at September Term, 1936, of Dueham.

Affirmed.

This is an action to have a deed executed by tbe defendant, Jefferson E. Owens, Trustee, to tbe defendant Rorth Carolina Mortgage Corporation declared void, and for other relief.

A deed of trust executed by tbe plaintiff to tbe First Rational Bank of Durham, Trustee, on 15 April, 1929, to secure a loan made to tbe plaintiff by tbe defendant, Tbe Home Mortgage Company, was duly foreclosed by a sale of tbe land conveyed by said deed of trust by tbe said First Rational Bank of Durham, Trustee, on 7 Rovember, 1931.

Before it bad executed a deed to tbe defendant, Rorth Carolina Mortgage Corporation, tbe purchaser at said sale, tbe First Rational Bank of Durham, ceased to do business because of its insolvency.

On 22 January, 1932, tbe defendant Jefferson E. Owens was duly appointed substitute trustee in tbe deed of trust from tbe plaintiff to tbe First Rational Bank of Durham, Trustee, and accepted said appointment. Thereafter tbe defendant Rorth Carolina Mortgage Corporation duly complied with its purchase of tbe land sold by tbe First Rational Bank of Durham, Trustee, on 7 Rovember, 1931.

On 8 June, 1932, tbe defendant Jefferson E. Owens, Trustee, executed and delivered to tbe defendant Rorth Carolina Mortgage Corporation, a deed conveying to tbe said corporation tbe land described in tbe deed of trust from tbe plaintiff to tbe First Rational Bank of Durham, Trustee.

On tbe foregoing facts, which were found by tbe referee to whom tbe action was referred for trial, it was ordered, considered, and adjudged by tbe court that tbe deed from tbe defendant Jefferson E. Owens, Trustee, to tbe defendant Rorth Carolina Mortgage Corporation, is valid in all respects.

From tbe judgment, tbe plaintiff appealed to tbe Supreme Court, assigning error in tbe judgment.

Bennett & McDonald for plaintiff.

Fuller, Reade & Fuller for defendants.

Per Curiam.

It is admitted by the plaintiff on bis appeal to this Court, that the defendant Jefferson E. Owens was duly appointed substitute trustee in the deed of trust from the plaintiff to the First Rational Bank of Durham, and that the sale of the land conveyed by the deed of trust on 7 November, 1931, by the First Rational Bank of Durham, as Trustee, was regular in all respects.

The plaintiff contends, however, that the substitute trustee was without authority by reason of bis appointment to execute a deed to the purchaser at the sale made by the original trustee. This contention cannot be sustained.

Under the provisions of the deed of trust which appear in the record, and under the provisions of the statute (chap. 78, Public Laws of N. C., 1931, N. C. Code of 1935, sec. 2583 [a]), the substitute trustee was authorized to complete the foreclosure of the deed of trust by the execution of a deed to the purchaser at the sale made by the original trustee, upon his compliance with his bid. See N. C. Mort. Corp. v. Morgan, 208 N. C., 743; 182 S. E., 450.

There is no error in the judgment.

Affirmed.