House v. . Parker

106 S.E. 137, 181 N.C. 40, 1921 N.C. LEXIS 11

• Court: Supreme Court of North Carolina
• Decided: March 2, 1921
• Status: Published

Opinion

Stagy, J.

Sec. 2587, C. S., relating to tbe foreclosure of conditional sales, provides as follows: “In all sales of personal property wherein the title is retained by the seller to secure the purchase money, or any part thereof, and no power' of sale is conferred, and default is made in the payment of said obligation by the purchaser, then in all such cases it is lawful for the owner of such debt thereby secured, without an order of court, to sell such property, or so much thereof as may be necessary to pay off said indebtedness, at public auction for cash, after first giving-twenty days notice at three or more public places in the county wherein the sale is to be made, and apply the proceeds of such sale to the discharge of said debt, interest on the same, and costs of foreclosure, and pay any surplus to the person legally entitled thereto. Before making any such sale, in addition to the advertisement above required, the owner of said debt shall, at least ten days before the day of sale, mail a copy of the notice of sale to the last known postoflice address of the original purchaser or his assigns.”

Under a proper construction of this' statute, and on the record, we think his Honor erred in charging the jury that the defendant could not sell the property in question without the consent and direction of the plaintiff. It is true the contract contains no express power of sale; but the general laws of the State in force at the time of its execution and performance enter into and become as much a part of the contract as if they were expressly referred to or incorporated in its terms. O’Kelly v. Williams, 84 N. C., 281; Graves v. Howard, 159 N. C., 594, and Van Huffman v. Quincy, 4 Wallace, 552.

There are other exceptions worthy of consideration, but as the case goes back for a new trial, and as they may not occur on another hearing, we refrain from further comment.

New trial.