Shaw v. Wolf , 23 N.C. App. 73 ( 1974 )

CAMPBELL, Judge.

It is obvious that the district court judge based his decision upon the failure of the plaintiff Shaw to answer or otherwise plead in the special proceeding which was pending before the Clerk of Superior Court of Alleghany County and such failure on his part constituted a waiver of any defenses he had to the foreclosure proceedings. This necessitates an inquiry into the special proceeding.

As was stated in Wadsworth v. Wadsworth, 260 N.C. 702, 706, 133 S.E. 2d 681, 685 (1963) :

“There are certain absolute prerequisites of a valid judicial sale. ‘ . . . [I]t is necessary, in order that a judicial sale may be validly made, that the court by which it was ordered shall have the general power to decree a sale, and that in a particular case the jurisdiction of the court over the subject matter and parties shall have been acquired in a proper manner.’ ...”

It is without question that the clerk of superior court has general jurisdiction of special proceedings. Wadsworth v. Wads-worth, sv/pra. The question, however, still remains as to whether a special proceeding is proper for the foreclosure of a mortgage or deed of trust. The answer to this is in the negative. “A proceeding to foreclose a mortgage under an order of court is a civil action.” 1 McIntosh, N. C. Practice, 2d Ed., § 239 (4). A foreclosure proceeding is an equity proceeding, and the clerk of superior court does not have any general equity jurisdiction. 1 McIntosh, N. C. Practice, 2d Ed., § 193, 2 McIntosh, N. C. Practice, 2d Ed., § 1695 (3).

In the instant case, the petitioners, in the special proceeding which was and is pending, were attempting to use a special proceeding in lieu of a civil action for the purpose of foreclosing a deed of trust. This was an improper remedy, and since the clerk of superior court had no jurisdiction, the proceeding was a nullity. The respondents Shaw in that proceeding were under no duty to file an answer, and their failure to do so did not create any estoppel.

It is noted that the various sales of the land in question were conducted “under and by virtue of an Order of the Clerk of Superior Court and of the Power of Sale contained in a certain Deed of Trust.” Thus, while the order of the clerk of superior court was a nullity, the sales being conducted under the power of sale contained in the deed of trust were valid.

Since Shaw was not estopped, the judgment dismissing his action was erroneous.

Reversed.

Judges Parker and Vaughn concur.