Woodell v. Davis , 261 N.C. 160 ( 1964 )

134 S.E.2d 160 (1964) 261 N.C. 160

Mrs. Pearl WOODELL
v.
C. R. DAVIS and wife, Lillian B. Davis.

No. 525.

Supreme Court of North Carolina.

January 17, 1964.

Lyon & Lyon, Smithfield, for plaintiff appellant.

Albert A. Corbett, Smithfield, for defendant appellee.

SHARP, Justice:

The motion to strike was properly allowed. The stricken paragraphs alleged the breach of an agreement to delay foreclosure as long as plaintiff paid the interest on the indebtedness and, in any event, not to foreclose without giving plaintiff sufficient notice so that she could refinance. However, plaintiff alleges no consideration for this promise. Therefore, it will not support a contract enforcible in law or sustain an action for damages for its breach. Craig v. Price, 210 N.C. 739, 188 S.E. 321, a case in which the plaintiff alleged an agreement similar to the one averred here, is decisive and supports his Honor's ruling.

A foreclosure made under a power of sale in the instrument must be made in strict conformity with it and with the pertinent statutory provisions which are by operation of law included in all mortgages and deeds of trust. Foust v. Gate City Savings & Loan Asso., 233 N.C. 35, 62 S.E.2d 521, 22 A.L.R.2d 975; Jenkins v. Griffin, 175 N.C. 184, 95 S.E. 166; 37 Am.Jur., Mortgages §§ 663, 664. The plaintiff has alleged no failure by the defendant to observe either the statutory requirements or the provisions of the deed of trust. If there was any failure to advertise properly, the burden was on the plaintiff to allege it. Jenkins v. Griffin, supra; Cawfield v. Owens, 129 N.C. 286, 40 S.E. 62. She merely alleges that defendant's failure to give her notice of the sale after he had promised to do so constituted a breach of contract and was fraudulent.

In the absence of a valid contract so to do, there is no requirement that a creditor shall give personal notice of a foreclosure by sale to a debtor who is in default. Plaintiff has alleged no valid contract nor has she alleged any facts which would taint the foreclosure with fraud. The mortgagor is always entitled to notice of sale under foreclosure, but notice is given when the advertisement required by the statute (G.S. § 45-21.17) is made. 1 Glenn, Mortgages § 110. This is true even though "[t]he principal object in publishing notice of sale of mortgaged property in the exercise of a power of sale is not so much to notify the grantor or mortgagor as it is to inform the public generally, so that bidders may be present at the sale and a fair price obtained; * * *." 59 C.J.S. Mortgages § 563.

In Biggs v. Oxendine, 207 N.C. 601, 603, 178 S.E. 216, 217, we find the following statement: "While it is proper and desirable for a trustee or a mortgagee to give notice of sale to the mortgagor, nevertheless such notice is not required." In sustaining a judgment of nonsuit upon this and other grounds in Craig v. Price, supra, the Court said, "Plaintiff complains that he did not receive personal notification of the foreclosure sale, but there was no evidence that the provisions of the deed of trust or of the statute, with respect to advertisement, were not fully complied with." In Carter v. Slocomb, 122 N.C. 475, 29 S.E. 720, it was held that a sale of land made by a mortgagee under the provision of sale in the mortgage, after the death of the mortgagor and without notice to his heirs, conveyed a good title. The Court said, "The mortgagor cannot demand any notice of intention to sell under the power, and the heir at law stands in the place of his ancestor."

It is noted from the stricken portions of the complaint that the plaintiff vacated the mortgaged property about January 6, 1962 and from then until July 1962 she was out of touch with the defendants leaving it up to them to discover her whereabouts as best they could.

His Honor sustained the demurrer ore tenus on the grounds that there was a defect of parties plaintiff. The property was originally purchased by plaintiff and her husband as tenants by the entireties and the husband was not a party plaintiff. However, at this stage of the proceedings, plaintiff's allegation that she is now the owner of the equity of redemption in the property eliminated the necessity for his presence in the suit. The demurrer ore tenus was properly sustained albeit for the wrong reason. Even if the husband were a party plaintiff the complaint would still state no cause of action. When this is the situation the court may raise the question ex mero motu. Skinner v. Empresa Transformadora, etc., S. A., 252 N.C. 320, 113 S.E.2d 717; Lamm v. Crumpler, 233 N.C. 717, 65 S.E.2d 336.

The judgment of the lower court is

Affirmed.

PARKER, J., dissents.