ClabKson, J.
An action over the land in controversy in this case was before this Court heretofore.
Pearce v. Montague,
209 N. C., 42. The decision in that action is not material to this controversy, but it is there said, at pp. 43-4: “When the defendant executed and delivered to the plaintiff his mortgage, he was the owner of the equity of redemption in the lands and the mortgagee could not extinguish this equity of redemption by his purchase of the land at the tax sale, and the title which the mortgagee acquired at the tax sale is held by him in trust for himself and the defendant, the mortgagor, since when a mortgagee pays off an encumbrance and acquires a title superior to his title as mortgagee, he holds such title so acquired as trustee for the benefit of himself and the mortgagor.
Cauley v. Sutton,
150 N. C., 327.”
The defendants set forth certain questions involved: “1. Did the Court commit error in sustaining plaintiff’s demurrer ore tenus to defendants’ further answer and defense and cross-action?” We think not, taking the record as a whole the judgment below was correct. The defendants purchased the equity of redemption of the lands in controversy.
In
Dameron v. Carpenter,
190 N. C., 595 (597), the principle of law is thus stated: “The plaintiffs, purchasers, are entitled to all the rights, titles and equities of their grantor, McLean, including the right to pay off the indebtedness according to the terms of the mortgage, and thereby clear their title.
Baker v. Bishop Hill Colony,
45 Ill., 264;
Schoffner v. Fogleman,
60 N. C., 564. Equity subrogates the purchaser of the equity redemption to the rights of the mortgagor to clear the title and procure the legal estate only as to the mortgaged premises, and no further.”
We think it is unnecessary to set forth in detail the further answer and defense, as a counterclaim and cross action' of defendants. It is long and treats mostly of records. In it defendants pray judgment: “That the defendants, Samuel Watkins and wife, Bessie Watkins, have an appropriate order and decree cancelling, setting aside, annulling and striking from the records as a lien or a cloud upon their title the following instruments of record: (a) deed of trust, Charles E. Montague and wife, to A. M. Bonner, Trustee, dated February 21, 1928, recorded in Book 523, page 170, registry of Wake County; (b) deed from Joseph B. Cheshire, Jr., substituted Trustee, dated June 20, 1939, recorded in Book 795, page 500, registry of Wake County; and (c) judgment in the case of Charles E. Montague, et ais, v. A. M. Bonner, et als, entered at June Term, 1939, and docketed in Judgment Docket 47, page 138, office of the Clerk of the Superior Court of Wake County.”
M. Z. Pearce, the plaintiff, testified, in part: “The day that I had the deed recorded, I went to see Sam Watkins, and asked him if he knew that I had a deed for the land. He said that he was expecting me or Mr. Beck one to get a deed, he didn’t know which one. I told him that I had the deed recorded that day and asked him what he wanted to do, and he said ‘I would like to rent the land for this year and will pay the fourth.’ I said,
'That is all right, I will rent it to you for the fourth.’
I served notice and made demand on Sam Watkins for the land after the first of the year, and rented it to another man, O. C. Pearce,
and before Christmas I went down there and covered the house that the tenant ivas living in and built a barn.
Sam Watkins made no complaint about the improvements I was making, and said nothing at all to me. I spent about $300.00 on these repairs. After I put the repairs and improvements on the land, and after I thought he had plenty of time to sell his crop, I demanded the place, and the payment of the rent. He said that he had a deed for the land, and that was the first time that I knew that
be claimed the land. That was just before I was ready to move my man on the property.”
Defendant, Samuel Watkins, testified, in part: “I took possession of the land under that deed from Charles E. Montague, and he had been living there on the land for 34 or 35 years, and
he claimed the land all that time. He died January 13, 1939. I tools possession of the land when he died
and planted crops on it. Mr. Pearce came to see me on June 20th or 21st, and I went with him to see the lines, and
he told me that he had bought the land,
and he asked me some questions about the amount of fertilizer I had used under the crops planted on this land. When he got back to his car parked in front of my door, he said to me,
‘8am, I am glad you are tending' this here land because it was so late I couldn’t plant nothing on there by the time I got it. Now, when this fall comes I will have a little rent and since it’s so late you can just give me the fourth.’ I told him if it is necessary for me to 'pay you rent, I will.
(Cross-examination).
I heard there was a lawsuit going on. I went on cultivating the land and I saw Mr. Pearce painting barns and stables and repairing the house. I didn’t object to Mr. Pearce, but I did object to his son when he come to do the ivorh.
I told him ‘I object to you or Mr. Pearce doing anything over here because I have got a deed to it.’ I went to him in September and offered to pay something, but it was not because I thought his claim was ahead of mine. I thought mine was ahead of his, yet I wanted to pay him something because he had bought the mortgage that I was due to pay off and I wanted to pay him.”
The above evidence indicates that Watkins knew of the lawsuit and he did not make himself a party or attempt to pay the prior lien; nor was R. D. Beck, whom he now claims was the owner of the debt to whom it was transferred, made a party. The trustee, A. M. Bonner, was a party to the restraining order. The trustee held the legal title to the land and under the applicable statute the substituted trustee was successor of the legal title.
In
Carswell v. Creswell,
217 N. C., 40 (46), it is written: “In
Orange County v. Wilson,
202 N. C., 424 (427), is the following: ‘Besides, the trustees of the petitioners were parties defendant and were served with process.’ The principle was so well settled that it was recognized without citing authorities, that a trustee could bind the
cestui que trustent.”
In the recital in the deed to plaintiff is the following: “And Whereas, default was made in the payment of the indebtedness thereby secured as therein provided,
and at the request of the holder of the said indebtedness and under and by virtue of the authority in the said deed of trust, and in accordance with the terms of same,”
etc. (Italics ours.)
N. C. Code, 1939 (Miehie), sec. 2583 (a), provides for substitution of
trustees in mortgages and deeds of trust, which, the record indicates was done in this case.
In
Pendergrast v. Mortgage Co.,
211 N. C., 126 (128), is the following : “Under the provisions of the deed of trust which appear in the record, and under the! provisions of the statute (ch. 78, Public Laws of N. C., 1931, N. C. Code of 1935, sec.
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ClabKson, J.
An action over the land in controversy in this case was before this Court heretofore.
Pearce v. Montague,
209 N. C., 42. The decision in that action is not material to this controversy, but it is there said, at pp. 43-4: “When the defendant executed and delivered to the plaintiff his mortgage, he was the owner of the equity of redemption in the lands and the mortgagee could not extinguish this equity of redemption by his purchase of the land at the tax sale, and the title which the mortgagee acquired at the tax sale is held by him in trust for himself and the defendant, the mortgagor, since when a mortgagee pays off an encumbrance and acquires a title superior to his title as mortgagee, he holds such title so acquired as trustee for the benefit of himself and the mortgagor.
Cauley v. Sutton,
150 N. C., 327.”
The defendants set forth certain questions involved: “1. Did the Court commit error in sustaining plaintiff’s demurrer ore tenus to defendants’ further answer and defense and cross-action?” We think not, taking the record as a whole the judgment below was correct. The defendants purchased the equity of redemption of the lands in controversy.
In
Dameron v. Carpenter,
190 N. C., 595 (597), the principle of law is thus stated: “The plaintiffs, purchasers, are entitled to all the rights, titles and equities of their grantor, McLean, including the right to pay off the indebtedness according to the terms of the mortgage, and thereby clear their title.
Baker v. Bishop Hill Colony,
45 Ill., 264;
Schoffner v. Fogleman,
60 N. C., 564. Equity subrogates the purchaser of the equity redemption to the rights of the mortgagor to clear the title and procure the legal estate only as to the mortgaged premises, and no further.”
We think it is unnecessary to set forth in detail the further answer and defense, as a counterclaim and cross action' of defendants. It is long and treats mostly of records. In it defendants pray judgment: “That the defendants, Samuel Watkins and wife, Bessie Watkins, have an appropriate order and decree cancelling, setting aside, annulling and striking from the records as a lien or a cloud upon their title the following instruments of record: (a) deed of trust, Charles E. Montague and wife, to A. M. Bonner, Trustee, dated February 21, 1928, recorded in Book 523, page 170, registry of Wake County; (b) deed from Joseph B. Cheshire, Jr., substituted Trustee, dated June 20, 1939, recorded in Book 795, page 500, registry of Wake County; and (c) judgment in the case of Charles E. Montague, et ais, v. A. M. Bonner, et als, entered at June Term, 1939, and docketed in Judgment Docket 47, page 138, office of the Clerk of the Superior Court of Wake County.”
M. Z. Pearce, the plaintiff, testified, in part: “The day that I had the deed recorded, I went to see Sam Watkins, and asked him if he knew that I had a deed for the land. He said that he was expecting me or Mr. Beck one to get a deed, he didn’t know which one. I told him that I had the deed recorded that day and asked him what he wanted to do, and he said ‘I would like to rent the land for this year and will pay the fourth.’ I said,
'That is all right, I will rent it to you for the fourth.’
I served notice and made demand on Sam Watkins for the land after the first of the year, and rented it to another man, O. C. Pearce,
and before Christmas I went down there and covered the house that the tenant ivas living in and built a barn.
Sam Watkins made no complaint about the improvements I was making, and said nothing at all to me. I spent about $300.00 on these repairs. After I put the repairs and improvements on the land, and after I thought he had plenty of time to sell his crop, I demanded the place, and the payment of the rent. He said that he had a deed for the land, and that was the first time that I knew that
be claimed the land. That was just before I was ready to move my man on the property.”
Defendant, Samuel Watkins, testified, in part: “I took possession of the land under that deed from Charles E. Montague, and he had been living there on the land for 34 or 35 years, and
he claimed the land all that time. He died January 13, 1939. I tools possession of the land when he died
and planted crops on it. Mr. Pearce came to see me on June 20th or 21st, and I went with him to see the lines, and
he told me that he had bought the land,
and he asked me some questions about the amount of fertilizer I had used under the crops planted on this land. When he got back to his car parked in front of my door, he said to me,
‘8am, I am glad you are tending' this here land because it was so late I couldn’t plant nothing on there by the time I got it. Now, when this fall comes I will have a little rent and since it’s so late you can just give me the fourth.’ I told him if it is necessary for me to 'pay you rent, I will.
(Cross-examination).
I heard there was a lawsuit going on. I went on cultivating the land and I saw Mr. Pearce painting barns and stables and repairing the house. I didn’t object to Mr. Pearce, but I did object to his son when he come to do the ivorh.
I told him ‘I object to you or Mr. Pearce doing anything over here because I have got a deed to it.’ I went to him in September and offered to pay something, but it was not because I thought his claim was ahead of mine. I thought mine was ahead of his, yet I wanted to pay him something because he had bought the mortgage that I was due to pay off and I wanted to pay him.”
The above evidence indicates that Watkins knew of the lawsuit and he did not make himself a party or attempt to pay the prior lien; nor was R. D. Beck, whom he now claims was the owner of the debt to whom it was transferred, made a party. The trustee, A. M. Bonner, was a party to the restraining order. The trustee held the legal title to the land and under the applicable statute the substituted trustee was successor of the legal title.
In
Carswell v. Creswell,
217 N. C., 40 (46), it is written: “In
Orange County v. Wilson,
202 N. C., 424 (427), is the following: ‘Besides, the trustees of the petitioners were parties defendant and were served with process.’ The principle was so well settled that it was recognized without citing authorities, that a trustee could bind the
cestui que trustent.”
In the recital in the deed to plaintiff is the following: “And Whereas, default was made in the payment of the indebtedness thereby secured as therein provided,
and at the request of the holder of the said indebtedness and under and by virtue of the authority in the said deed of trust, and in accordance with the terms of same,”
etc. (Italics ours.)
N. C. Code, 1939 (Miehie), sec. 2583 (a), provides for substitution of
trustees in mortgages and deeds of trust, which, the record indicates was done in this case.
In
Pendergrast v. Mortgage Co.,
211 N. C., 126 (128), is the following : “Under the provisions of the deed of trust which appear in the record, and under the! provisions of the statute (ch. 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
Mortgage Corp. v. Morgan,
208 N. C., 743, 182 S. E., 450.”
We see no error in the exclusion of certain instruments set forth in the record and offered by defendants. The' court below in the judgment set forth, in part: “In apt time the plaintiff demurred
ore tenus
to the cross-action of the defendants, and it appearing to the Court, and the Court finds it a fact, that the defendants, by their cross-action, seek relief affecting parties other than those to this action, and by their cross-action seek to have set aside, cancelled and declared void a judgment rendered in a suit in this Court, to which suit none of the parties to this action were parties.”
No attack on any of the conveyances complained of by defendants was made by them on the ground that they were procured by fraud or mutual mistake, nor was this set up as a defense. If defendants had any rights, they slept on them and it is now too late for them to complain. In fact, the deed from J. B. Cheshire, Jr., Substituted Trustee, to plaintiff, sets forth in detail and recites all the instruments by which the power was exercised which gave him authority to make the deed. This was
prima facie
evidence of their
bona fide
correctness and there is neither allegation or proof to show they were not.
In
Jenkins v. Griffin,
175 N. C., 184 (186), it is said: “Powers 6f sale in a mortgage are contractual, and as there are many opportunities for oppression, courts of equity are disposed to scrutinize them and to hold the mortgage to the letter of the contract. It is essential to the validity of a sale under a power to comply fully with the requirements as to giving notice of the sale.
Eubanks v. Becton,
158 N. C., 234. This is the rule, but in its enforcement 'The presumption of law is in favor of the regularity in the execution of the power of sale; and if there were any failure to advertise properly, the burden was on defendant (here on plaintiffs) to show it.’
Cawfield v. Owens,
129 N. C., 288;
Troxler v. Gant,
173 N. C., 425. How have the plaintiffs sustained this burden? The deed to the purchaser was introduced, and it recites that the sale was duly advertised, which recital is
prima facie
evidence of its correctness
(Lunsford v. Speaks,
112 N. C., 608).”
Freeman v. Ramsey,
189 N. C., 790 (796).
In
Mfg. Co. v. Jefferson,
216 N. C., 230 (232), we find: “The recitals
in the recorded deed from the trustee to the Roanoke Bank
&
Trust Company established
prima facie
right in the purchaser at the foreclosure sale, and the plaintiff as grantee of the purchaser occupied the status of an innocent purchaser for value without notice.”
The defendants make the further contentions : “2. Did the Court commit error in excluding testimony of defendant and in excluding defendants’ evidence of records of title to the lands involved, including judgment alleged to be void? 3. Did the Court commit error in directing a verdict for the plaintiff upon the issue of title ? 4. Did the Court err in denying defendants’ motion for judgment or directed verdict in their favor?” For the reasons given, none of these contentions made by defendants can be sustained.
On the entire pleadings, record and evidence, we think the judgment of the court below is correct. Allegations without
probata
is of no avail to defendants. If technically the further defense was not demurrable— mainly conclusions of law — -yet on the entire record there was no prejudicial or reversible error.
No error.