Whitford v. North Carolina Joint-Stock Land Bank of Durham

176 S.E. 740, 207 N.C. 229, 1934 N.C. LEXIS 426

• Court: Supreme Court of North Carolina
• Decided: October 31, 1934
• Status: Published

Opinion

Schenck, J.

Tbe ten assignments of error in tbe record may be discussed in four groups, namely, (1) those based upon exceptions to tbe court’s finding tbat tbe plaintiffs were in default, (2) those based upon exceptions to tbe court’s refusal to find a breach by tbe defendant bank of a parol agreement, made after tbe foreclosure sale, to bold up delivery of deed in order to give tbe plaintiffs more time to raise money to redeem their land, and (3) those based upon exceptions to tbe court’s failure to find tbe value of tbe plaintiffs’ land at tbe time of tbe foreclosure sale, and (4) those based upon tbe failure of tbe court to find tbat tbe title of tbe land was in tbe feme plaintiff.

As to tbe first group: It is true tbat in one aspect of tbe pleadings and evidence it was a controverted fact as to whether tbe plaintiffs were in default at tbe time of tbe institution of this action, and although there may have been evidence tending to support tbe allegation of tbe com plaint “that the plaintiffs have paid all of said installments, or arranged for all of said installments to be paid,” there was ample evidence to justify the court’s finding that the plaintiffs had failed to pay certain past-due installments, and were therefore in default. While on appeal in injunction proceedings the Supreme Court has the power to find and to review the findings of fact, Teeter v. Teeter, 205 N. C., 438, we are not disposed to change his Honor’s findings, since we are of the opinion that they are not only supported by the evidence, but are in accord with the greater weight thereof.

As to the second group: It was likewise a controverted fact as to whether the delivery of the deed from the substitute trustee to the co-defendant bank was in breach of a parol agreement between the plaintiffs and defendant bank to -hold the matter up and give the plaintiffs further time to raise the money to save their property, and there was competent evidence offered on both sides of this controversy. His Honor found for the defendants, and we are of the opinion that such finding was in accord with the weight of the evidence. There is no evidence in the record tending to show how long the defendants agreed “to hold the matter up” or how much “further time to raise the money” they agreed to give. If such a parol agreement was made, with the element of time entirely absent, it would have been revocable at the will of the defendant bank.

As to the third group: In the absence of any allegation or proof of fraud, the value of the land sold at the time of the foreclosure was immaterial, since mere inadequacy of purchase price standing alone is not sufficient to entitle the plaintiffs to have set aside a deed given by a trustee where a deed of trust has been foreclosed in conformity to the power of sale therein contained. Roberson v. Matthews, 200 N. C., 241.

As to the fourth group: In view of the fact that the feme plaintiff, as well as the male plaintiff, executed and delivered both the note and the deed of trust, it is obviously immaterial which of the plaintiffs held title to the land.

His Honor concluded his order with the following language: “The court further finds that any rights or remedies to which plaintiffs may be entitled by reason of their complaint and replication can and may be preserved by filing notice of lis pendens, as provided by statute, and that for any rights or remedies that they may have by reason of their pleadings, they have a full, complete and adequate remedy at law.”

We think his Honor’s conclusion is a correct one. Article 2, ch. 12, of Consolidated Statutes, provides that “In an action affecting the title to real property, the plaintiff, at or any time after the time of filing a complaint, . . . may file with the clerk of each county in which the property is situated a notice of the pendency of the action, . . .” (sec. 500), and that “any party to an action desiring to claim the benefit of a notice of lis pendens . . . shall cause such notice to be cross-indexed, . . . .” (sec. 501), and that “from the cross-indexing of the notice of Us pendens only is the pendency of the action constructive notice to a purchaser or encumbrancer of the property affected thereby; and every person whose conveyance or encumbrance is subsequently executed or subsequently registered is a subsequent purchaser or encum-brancer, and is bound by all proceedings taken after the cross-indexing of the notice to the same extent as if he were made a party to the action. . . ” (Sec. 502.)

By complying with these plain statutory provisions the plaintiffs can preserve every right they may have under their pleadings; and it is too well settled in this jurisdiction to require citations of authority that where there is a full, complete and adequate remedy at law the equitable remedy of injunction will not lie.

Chapter 275, Public Laws of 1933, has no application to this case, since the sale had been made and confirmed and the deed from the trustee to the purchaser had been of record for approximately three months before the institution of this action, and the act provides that any person having a legal or equitable interest in real estate “may apply to a judge of the Superior Court, prior to the confirmation of any sale of such real estate by a mortgagee, trustee, commissioner, or other person authorized to sell the same, to enjoin such sale or confirmation thereof, upon the ground that the amount bid or price offered therefor is inadequate and inequitable and will result in irreparable damage” to such interested person.

Affirmed.