In substituting a trustee under tbe provisions of C. S., 2583, tbe statute provides that all persons interested shall be made parties to tbe proceeding. Does dll persons interested include junior lienholders? We do not so bold.
The case of Guion v. Melvin, 69 N. C., 242, involved tbe appointment of a trustee under tbe statute now under consideration. Tbe trust involved both real and personal property. Tbe trustee bad died. Tbe real property descended to tbe trustee’s heirs and tbe personal property passed to bis administrator, clothed with trusts. Tbe heirs at law and tbe administrator refused to execute tbe trust. Whereupon, one of tbe several cestuis que trusient filed an ex parte petition for tbe removal of tbe trustees and for tbe appointment of a substitute trustee. Tbe Court held that a trustee could not be removed and another substituted in an ex parte proceeding; that tbe application is in tbe nature of a civil action, and all persons interested must be made parties. Tbe Court said: “If in tbe present case one of many cestuis que trusient can, upon *343an ex parte application, remove a trustee wbom all tbe parties have chosen to execute the trust, can take from him the possession of the property and transfer it to the mover’s nominee, without giving the trustee or the other parties interested any opportunity to be heard, it must follow that one of several cestuis que trustent may do so in every case, and the consequences are too obvious to need mention. ... As to parties. Of course no one can suppose that by the death of a trustee there ceases to be a trustee. The real property descends to his heirs, and the personalty goes to his administrator, clothed with trusts. The plaintiff prqperly made the heirs and administrator parties defendant. The other cestuis que trustent who have an interest in the question ought either to be made parties, or the summons should be on behalf of the plaintiff and all others in like situation who choose to come in, and they should receive notice of the pendency of the action.”
In the instant case the proceeding was not ex parte and the only question is whether or not all interested persons, as required by the statute, were parties to the proceeding under consideration. It will be noted that in the case of Guion v. Melvin, supra, the Court held the interested parties to be the trustees and the cestuis que trustent. Furthermore, the reasons given in the opinion for making all the cestuis que trustent parties to the proceedings, clearly indicate that the necessary parties are to be limited to the trustee or trustees sought to be removed and those parties who have a right to participate in the selection of the substitute trustee.
The defendants further contend that junior lienholders ought to be made parties to a proceeding to appoint a substitute trustee, so that in the event of foreclosure they may the more easily recognize the deed of trust being foreclosed as one affecting the lands on which they hold a second lien. This position is untenable.
In Trust Co. v. Padgett, 194 N. C., 729, 140 S. E., 714, it is held that where a trustee is substituted in accordance with the method expressed in a deed of trust, no proceedings are necessary under the provisions of C. S., 2583; and a deed made by the substituted trustee passes the title to the purchaser at a foreclosure sale. On the other hand, while the provisions .of a deed of trust are contractual, Mitchell v. Shuford, 200 N. C., 321, 156 S. E., 513; Brown v. Jennings, 188 N. C., 155, 124 S. E., 150; Eubanks v. Becton, 158 N. C., 230, 73 S. E., 1009, the statutes providing for the removal and substitution of trustees in deeds of trust, which are in effect at the time of the execution of said instruments, become a part thereof, as fully as if incorporated therein. Bateman v. Sterrett, 201 N. C., 59, 159 S. E., 14; Hood, Comr. of Banks, v. Martin, 203 N. C., 620, 166 S. E., 793; Headen v. Ins. Co., 206 N. C., 270, 173 S. E., 349; Bank v. Bryson City, 213 N. C., 165, 195 S. E., *344398; Spain v. Hines, 214 N. C,, 432, 200 S. E., 25; Rostan v. Huggins, 216 N. C., 386, 5 S. E. (2d), 162.
C. S., 2583, was in effect at tbe time of tbe execution of botb deeds of trust referred to herein, and tbe parties to those instruments were charged with knowledge of tbe fact that a trustee might be substituted in accordance with tbe terms of tbe statute. This statute has been amended so as to provide an alternative method of substituting a trustee in an ex parte proceeding. See chapter 78 of tbe Public Laws of 1931, as amended by chapter 227 of tbe Public Laws of 1935, N. C. Code of 1939 (Michie), 2583a. However, in a proceeding for tbe removal of a trustee and tbe appointment of a substitute trustee, under tbe provisions of C. S., 2583, we bold that all interested persons referred to in tbe statute include only tbe trustor, trustee or trustees and all tbe cestuis que trustent, whose interests are secured by tbe deed of trust in which tbe trustee or trustees are sought to be removed and another substituted.
Tbe judgment of tbe court below is
Affirmed.