Biggs v. . Oxendine

178 S.E. 216, 207 N.C. 601, 1935 N.C. LEXIS 215

• Court: Supreme Court of North Carolina
• Decided: January 28, 1935
• Status: Published

Opinion

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 mort gagor, 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.