Clarkson, J.
The main and material question: Plaintiff, appellant, excepts and assigns error to the refusal of the court to grant the plaintiff’s motion for judgment on the pleadings: “The appellant contends that judgment for the plaintiff on the pleadings should have been granted for the reason that the answer and further defense clearly show that the sale under foreclosure was irregular and that from the records incorporated by reference in their pleadings the defendants had notice or acted in bad faith in acquiring the property.” ¥e cannot so hold. The record discloses that the court below found the facts to the contrary and there was sufficient evidence to sustain the findings.
In the Matter of Assessment Against R. R.,
196 N. C., at p. 758-9.
Chapter 520, Public-Local Laws of 1915, sec. 3(a), the act establishing the Forsyth County Court provides: “That in the trial of civil cases in said court either the plaintiff at the time of filing the complaint or the defendant at the time of filing the answer may in his pleadings demand and have a jury trial as provided in the trial of causes in the Superior Court; that failure to demand a jury trial at the time herein provided shall be deemed a waiver of the= right to a trial by jury; that the judge of said court, when in his opinion the ends of justice would be best served by submitting the issues to the jury, may have a jury called of his own motion and submit to it such issues as he may deem material.”
Under the statute, neither party requested a jury trial. The judgment of the Forsyth County Court so finds and further that the agreement to waive a jury trial was “entered of record.” C. S., 568.
Morris v. Bogue Corporation,
194 N. C., 279;
Burlington Hotel Corp. v. Dixon,
196 N. C., 265. The presumption is that the proceedings in the court below are correct and the appellant must show error.
Parker v. Debnam,
195 N. C., at p. 60.
The record “imports verity.”
S. v. Wheeler,
185 N. C., 670;
S. v. Palmore,
189 N. C., 538;
S. v. Berry,
190 N. C., 363.
The court below found: C. M. Sheets, one of the defendants, became the purchaser from Mock and Wiseman, the purchasers at the foreclosure sale, of the lands described in the complaint for a valuable consideration ($1,433.66) in good faith, and without knowledge of any irregularities in the foreclosure proceedings.
In
Jenkins v. Griffin,
175 N. C., 184, 186, it is said: “The presumption of law is in favor of the regularity in the execution of the power of sale; and if there was any failure to advertise properly the burden was on defendant (here on iDlaintiff) to show it.”
Douglas v. Rhodes,
188 N. C., at p. 584.
In
Hinton v. Hall,
166 N. C., p. 480, it was said: “It was true that failure to advertise according to the terms of the power of sale invalidates the sale,
Eubanks v. Becton,
158 N. C., 230. But it is said that such sale is not absolutely void, but will pass the legal title.
Eubanks v. Becton, supra; Brett v. Davenport,
151 N. C., 58. While such sale would be set aside as to the purchaser, a subsequent or remote grantee without notice and in good faith takes a good title against such defects or irregularities in the sale of which he had no notice. 27 Cyc., 1494.”
Whitley v. Powell,
191 N. C., at p. 477; 19 R. C. L., 623.
The defendant, Sheets, therefore, got a good title because the court below found that he was a bona fide purchaser from the purchasers at the foreclosure sale for value, and without notice of any irregularities. As to the defendant, Lindsay, to whom Sheets subsequently sold a part of these lands, the court has found on disputed evidence that Lindsay had been informed that there were claims of irregularities in the foreclosure prior to the time he purchased. This is immaterial, because once Sheets had acquired good title, he had the right to convey good title to any' one who had not participated in any wrongdoing. If this was not so a bona fide purchaser for value without notice would have, the title to his land “bottled up.”
2 Pomeroy’s Equity Jurisprudence (4 ed.), sec. 754, states the rule as follows: “There are two special rules on the subject which have been settled since an early day; one being a mere application of the general doctrine, and the other a necessary inference from it. The first is, that if a second purchaser for value and without notice purchases from a first purchaser who is charged with notice, he thereby becomes a bona fide purchaser and is entitled to protection. This statement may be generalized. If the title to land, having passed through successive grantees, and subject in the hands of each to prior outstanding equities, comes to a purchaser for value and without notice, it is at once freed from these equities; he obtains a valid title, and, with a single exception, the full power of disposition. This exception is, that such a title cannot be conveyed, free from the prior equities, back to a former owner
wbo was charged with notice. If A., bolding a title affected with notice, conveys to B., a bona fide purchaser, and afterwards takes a reconveyance to himself, all the equities revive and attach to the land in his hands, since the doctrine requires not only valuable consideration and absence of notice, but also
good faith.
The second rule is, that if a second purchaser with notice acquires title from a first purchaser who was without notice, and bona fide, he succeeds to all the rights of his immediate grantor. In fact, when land once comes, freed from equities, into the hands of a bona fide purchaser, he obtains a complete
jus dis-ponendi,
with the exception last above mentioned, and may transfer a perfect title even to volunteers.”
In
Phillips v. Buchanan Lumber Co.,
151 N. C., at 521, this Court, speaking to the subject, said: “Besides, a purchaser for value from one whose deed was procured by fraud gets a good title if he has no notice of the fraud.
Odom v. Riddick,
104 N. C., 515, and cases there cited. Even a purchaser with notice of the fraud from an innocent purchaser without notice gets good title.
Glenn v. Bank,
70 N. C., 205;
Fowler v. Poor,
93 N. C., 466.”
It appears from the record that numerous resales of the property in controversy were had in accordance with C. S., 2591. It is alleged by defendants “more than ten times being advertised, each time for sale and resale, according to law.” This matter has been recently discussed in
Hanna v. Car. Mortgage Co., ante,
184.
We
need not repeat. It is there said that “It is a statute that does not hurt the mortgagee, but is beneficial to the mortgagor and often saves mortgaged property from being sacrificed.” The plaintiff had opportunity, time and time again, to bid on the property in controversy at resales, and as the holder of the equity of redemption to protect himself. He slept on his rights and, although a hardship, we cannot change well settled principles of law. “Hard cases are the quicksands of the law.”
Leak v. Armfield,
187 N. C., 625.
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Clarkson, J.
The main and material question: Plaintiff, appellant, excepts and assigns error to the refusal of the court to grant the plaintiff’s motion for judgment on the pleadings: “The appellant contends that judgment for the plaintiff on the pleadings should have been granted for the reason that the answer and further defense clearly show that the sale under foreclosure was irregular and that from the records incorporated by reference in their pleadings the defendants had notice or acted in bad faith in acquiring the property.” ¥e cannot so hold. The record discloses that the court below found the facts to the contrary and there was sufficient evidence to sustain the findings.
In the Matter of Assessment Against R. R.,
196 N. C., at p. 758-9.
Chapter 520, Public-Local Laws of 1915, sec. 3(a), the act establishing the Forsyth County Court provides: “That in the trial of civil cases in said court either the plaintiff at the time of filing the complaint or the defendant at the time of filing the answer may in his pleadings demand and have a jury trial as provided in the trial of causes in the Superior Court; that failure to demand a jury trial at the time herein provided shall be deemed a waiver of the= right to a trial by jury; that the judge of said court, when in his opinion the ends of justice would be best served by submitting the issues to the jury, may have a jury called of his own motion and submit to it such issues as he may deem material.”
Under the statute, neither party requested a jury trial. The judgment of the Forsyth County Court so finds and further that the agreement to waive a jury trial was “entered of record.” C. S., 568.
Morris v. Bogue Corporation,
194 N. C., 279;
Burlington Hotel Corp. v. Dixon,
196 N. C., 265. The presumption is that the proceedings in the court below are correct and the appellant must show error.
Parker v. Debnam,
195 N. C., at p. 60.
The record “imports verity.”
S. v. Wheeler,
185 N. C., 670;
S. v. Palmore,
189 N. C., 538;
S. v. Berry,
190 N. C., 363.
The court below found: C. M. Sheets, one of the defendants, became the purchaser from Mock and Wiseman, the purchasers at the foreclosure sale, of the lands described in the complaint for a valuable consideration ($1,433.66) in good faith, and without knowledge of any irregularities in the foreclosure proceedings.
In
Jenkins v. Griffin,
175 N. C., 184, 186, it is said: “The presumption of law is in favor of the regularity in the execution of the power of sale; and if there was any failure to advertise properly the burden was on defendant (here on iDlaintiff) to show it.”
Douglas v. Rhodes,
188 N. C., at p. 584.
In
Hinton v. Hall,
166 N. C., p. 480, it was said: “It was true that failure to advertise according to the terms of the power of sale invalidates the sale,
Eubanks v. Becton,
158 N. C., 230. But it is said that such sale is not absolutely void, but will pass the legal title.
Eubanks v. Becton, supra; Brett v. Davenport,
151 N. C., 58. While such sale would be set aside as to the purchaser, a subsequent or remote grantee without notice and in good faith takes a good title against such defects or irregularities in the sale of which he had no notice. 27 Cyc., 1494.”
Whitley v. Powell,
191 N. C., at p. 477; 19 R. C. L., 623.
The defendant, Sheets, therefore, got a good title because the court below found that he was a bona fide purchaser from the purchasers at the foreclosure sale for value, and without notice of any irregularities. As to the defendant, Lindsay, to whom Sheets subsequently sold a part of these lands, the court has found on disputed evidence that Lindsay had been informed that there were claims of irregularities in the foreclosure prior to the time he purchased. This is immaterial, because once Sheets had acquired good title, he had the right to convey good title to any' one who had not participated in any wrongdoing. If this was not so a bona fide purchaser for value without notice would have, the title to his land “bottled up.”
2 Pomeroy’s Equity Jurisprudence (4 ed.), sec. 754, states the rule as follows: “There are two special rules on the subject which have been settled since an early day; one being a mere application of the general doctrine, and the other a necessary inference from it. The first is, that if a second purchaser for value and without notice purchases from a first purchaser who is charged with notice, he thereby becomes a bona fide purchaser and is entitled to protection. This statement may be generalized. If the title to land, having passed through successive grantees, and subject in the hands of each to prior outstanding equities, comes to a purchaser for value and without notice, it is at once freed from these equities; he obtains a valid title, and, with a single exception, the full power of disposition. This exception is, that such a title cannot be conveyed, free from the prior equities, back to a former owner
wbo was charged with notice. If A., bolding a title affected with notice, conveys to B., a bona fide purchaser, and afterwards takes a reconveyance to himself, all the equities revive and attach to the land in his hands, since the doctrine requires not only valuable consideration and absence of notice, but also
good faith.
The second rule is, that if a second purchaser with notice acquires title from a first purchaser who was without notice, and bona fide, he succeeds to all the rights of his immediate grantor. In fact, when land once comes, freed from equities, into the hands of a bona fide purchaser, he obtains a complete
jus dis-ponendi,
with the exception last above mentioned, and may transfer a perfect title even to volunteers.”
In
Phillips v. Buchanan Lumber Co.,
151 N. C., at 521, this Court, speaking to the subject, said: “Besides, a purchaser for value from one whose deed was procured by fraud gets a good title if he has no notice of the fraud.
Odom v. Riddick,
104 N. C., 515, and cases there cited. Even a purchaser with notice of the fraud from an innocent purchaser without notice gets good title.
Glenn v. Bank,
70 N. C., 205;
Fowler v. Poor,
93 N. C., 466.”
It appears from the record that numerous resales of the property in controversy were had in accordance with C. S., 2591. It is alleged by defendants “more than ten times being advertised, each time for sale and resale, according to law.” This matter has been recently discussed in
Hanna v. Car. Mortgage Co., ante,
184.
We
need not repeat. It is there said that “It is a statute that does not hurt the mortgagee, but is beneficial to the mortgagor and often saves mortgaged property from being sacrificed.” The plaintiff had opportunity, time and time again, to bid on the property in controversy at resales, and as the holder of the equity of redemption to protect himself. He slept on his rights and, although a hardship, we cannot change well settled principles of law. “Hard cases are the quicksands of the law.”
Leak v. Armfield,
187 N. C., 625.
The plaintiff’s motion for a new trial on the ground of newly discovered evidence cannot be 'allowed. We have read the affidavits carefully. The law in regard to newly discovered evidence is well stated in
Johnson v. R. R.,
163 N. C., at p. 453: “Applications of this kind, as we have held, should be carefully scrutinized and cautiously examined, and the burden is upon the applicant to rebut the presumption that the verdict is correct and that there has been a lack of due diligence. 14 Am. and Eng. Enc. PI. and Pr., 790.
We
require, as prerequisite to the granting of such motions, that it shall appear by the affidavit: (1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material and relevant; (4) that due diligence has been used and the means employed, or that there has been no
laches, in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail,” citing numerous authorities.
This decision has been cited time and time again. The newly discovered evidence is merely cumulative.
As to the regularity of the sale, for the reasons given on the other, aspects of the case, it is not necessary to consider, but see
Guilford v. Georgia
Co., 109 N. C., 310;
Whitley v. Powell,
191 N. C., 476.
From a thorough examination of the record, carefully prepared briefs and affidavits on the motion, we can find in law
No error.