Barefoot v. Lumpkin , 28 N.C. App. 721 ( 1976 )

VAUGHN, Judge.

Although plaintiffs alleged that they caused a plan to be prepared, that defendant Lumpkin had seen the plan and was aware that plaintiffs intended to develop the property according to that plan, plaintiffs did not plead the existence of a mutually agreeable plan of development. Defendants, in their answer, expressly denied the existence of such a plan. Defendant Lumpkin, in her affidavit filed in support of the motion for summary judgment, reaffirmed that no such plan had been submitted to or approved by her. Plaintiffs did not respond by affidavit or otherwise. Plaintiffs’ argument, on appeal, that an issue of fact exists as to whether defendant Lumpkin approved the plan is without merit.

On appeal, appellants contend that questions exist about whether defendants waived their right to insist on a plan of development and are now estopped to assert said plan as a condition precedent. Plaintiffs contend that these questions are raised because defendants executed a deed of release for 4.72 acres on 9 January 1973, and another deed of release for a five-acre tract on 18 July 1974. Both deeds also released an easement for ingress and egress over an adjoining strip of land. The descriptions in the deeds were by metes and bounds and contained no reference to a lot number or other plan of development. In plaintiffs’ complaint there is neither an allegation that there was consideration for the purported waiver nor an allegation that plaintiffs relied on the two releases as a waiver of the express condition of the deed of trust. They came forward with nothing at the hearing on the motion for summary judgment to support that argument. Plaintiffs, therefore, raised no material issue of fact as to waiver or estoppel.

The trial judge appears to have granted defendants’ motion for summary judgment for the reason that plaintiffs had failed to comply with the requirement that a plan of development be approved before defendants were required to release any of the land. We hold that this was a valid reason to grant the motion to dismiss the action.

There is another reason why summary judgment should have been granted against plaintiffs. The deed of trust provided that upon any default in payment, the entire sum became, at the option of the beneficiary, immediately due and collectible, “anything herein or in said note to the contrary notwithstanding.” It then became the duty of the trustee to expose the land for sale at public auction. Plaintiffs did not request release of the land in question from the operation of the deed of trust until after they had defaulted in their obligation to pay the debt that was secured by the deed of trust.

Consideration of the express terms of the purchase money deed of trust in question and the failure of plaintiffs to meet their obligation to defendant leads us to the conclusion that these plaintiffs cannot fail or refuse to pay their debt, force the beneficiary to resort to the security as her only remedy for collection of the debt due her and, therefore, ask the Court to compel the beneficiary to divest herself of part of the security and convey it to the defaulting plaintiffs.

The only damages awarded defendant Lumpkin on the counterclaim was the cost of advertising the first sale in the newspaper, $190.40. She did not appeal. It was the cost of advertising the second sale, $183.60, for which plaintiffs should have been held liable. The sum is disclosed by unrefuted affidavits filed in support of defendants’ motion for summary judgment. We hereby modify the judgment so that defendants recover $183.60 instead of $190.40.

For the reasons stated, the judgment is affirmed.

Affirmed.

Judges Martin and Clark concur.