Peedin v. . Oliver

Winborne, J. A careful consideration of the evidence shown in the record on this appeal, taken in the light most favorable to plaintiff, fails to show error in the judgment of nonsuit entered in Superior Court. Plaintiff’s challenge thereto is controlled by answer to three questions: First: Does the notice of foreclosure sufficiently describe the land to be sold? The answer is Yes. While the statute, O. S., 2588, provides that “in sales of real estate under deeds of trust or mortgages it is the duty of trustee or mortgagee making such sale to fully describe the premises in the notice required by law substantially as same is described in the deed of authority under which said trustee or mortgagee makes such sale,” this Court in applying this statute has held that an identical description of the land as contained in the deed of trust or mortgage is not required, and that a description “substantially” as in the conveyance is sufficient. Douglas v. Rhodes, 188 N. C., 580, 125 S. E., 261; Blount v. Basnight, 209 N. C., 268, 183 S. E., 405. In the case in hand, though the notice of sale does not contain the specific description as is set out in the mortgage, it recites that it is by virtue of a mortgage deed, names the mortgagors, gives the date and the book and page of the registry where the mortgage deed is recorded, and describes the land as “lying in Boon Hill and Pine Level Townships, Johnston County, North Carolina, adjoining S. A. Wellons and George Worley and others, and containing 53 acres more or less, and fully described by metes and bounds in the aforesaid mortgage.” This is sufficient to inform the public of the land to be sold, and to enable intending purchasers, in the exercise of ordinary diligence, to identify the land. In fact, plaintiff and his wife, and his sister and her husband were sufficiently informed, for they were present at the time and place named for the sale, and knew what land was being sold. Second: Is the validity of the sale impaired by the failure of the mortgagee to make report thereof to the clerk of Superior Court — there being no advanced bid? The statute, C. S., 2591, and decisions of this Court provide a negative answer. See Pringle v. Loan Assn., 182 N. C., 316, 108 S. E., 914, and Dillingham v. Gardner, 219 N. C., 227, 13 S. E. (2d), 478, and cases cited therein. Third: Conceding that there is evidence tending to show, or from which it may be inferred that defendant, D. B. Oliver, mortgagee, in the name of his son, W. B. Oliver, Jr., bid, and became the purchaser of *670 the land at the foreclosure sale, has plaintiff, by his conduct as shown by the evidence taken in the light most favorable to him, ratified or confirmed the sale? Has he been guilty of laches in asserting his equitable, rights in the land? An affirmative answer to each question is appropriate. The uniform decisions of this Court, on the subject, hold that where a mortgagee of land purchases at his own sale, directly or indirectly, the sale is not void, but only voidable, and, ordinarily, can be avoided only by the mortgagor or his heirs and assigns. Joyner v. Farmer, 78 N. C., 196; Whitehead v. Whitehurst, 108 N. C., 458, 13 S. E., 166; Averitt v. Elliott, 109 N. C., 560, 13 S. E., 785; Shuford v. Bank, 207 N. C., 428, 177 S. E., 408; Davis v. Doggett, 212 N. C., 589, 194 S. E., 288; Council v. Land Bank, 213 N. C., 329, 196 S. E., 483; Smith v. Land Bank, 213 N. C., 343, 196 S. E., 481; Mills v. B. & L. Assn., 216 N. C., 664, 6 S. E. (2d), 549. The mortgagor, in such case, has the election (1) “To ratify the sale and accept the proceeds, or settle on that basis”; or (2) to pursue one of two remedies: (a) he “may treat the sale as a nullity and have it set aside”; or (b) acting in repudiation of the sale, he may sue the mortgagee for the wrong done in making such a sale, and hold him liable for the true worth of the property. Froneberger v. Lewis, 70 N. C., 456, and 79 N. C., 426; Brothers v. Brothers, 42 N. C., 150; Patton v. Thompson, 55 N. C., 285; Bruner v. Threadgill, 88 N. C., 361; Burnett v. Supply Co., 180 N. C., 117, 104 S. E., 137; Council v. Land Bank, supra; Smith v. Land Bank, supra. See also Harris v. Hilliard, 221 N. C., 329, 20 S. E. (2d), 278. Nevertheless, the estate of the mortgagee acquired by the sale, being voidable only, may be confirmed by any of the means by which an owner of a.right in equity may part with it: (1) By a release under seal. (2) By such conduct as would make assertion of his right fraudulent against the mortgagee or against third persons, and which would, therefore, operate as an estoppel against its assertion. (3) By long acquiescence after full knowledge. Joyner v. Farmer, supra; Shuford v. Bank, supra; Council v. Land Bank, supra. See also Hare v. Weil, 213 N. C., 484, 196 S. E., 869; Wolfe v. Land Bank, 219 N. C., 313, 13 S. E. (2d), 533. Applying these principles to the facts in the instant case, it is apparent that plaintiff, with full knowledge of how the sale was conducted, has by his conduct, and long acquiescence ratified the sale, and is now estopped to challenge the validity of it. Summary of the evidence manifests clear intention of plaintiff to recognize the sale and to treat purchaser as the landlord, and to assume for himself the role of tenant. Plaintiff attended the sale and heard D. B. Oliver, the mortgagee, direct his attorney, who cried the sale, “to bid his claim and make deed to his *671 son, W. B. Oliver, Jr.” He knew that, upon a bid of $1,750.00, W. B. Oliver, Jr., was declared to be the purchaser of the land, and that, pursuant to the sale, deed therefor was made to ~W. B. Oliver, Jr. Thereafter, although he obtained the approval of a loan from the Land Bank in sufficient amount to pay the indebtedness secured by the mortgage deed, and for which the land was sold, as well as the unpaid taxes levied on the land, the evidence fails to show that he made any demand, or effort to redeem. On the other hand, he rented the land from D. B. Oliver for the year 1934 for a cash rental, and from W. B. Oliver, Jr., for the year 1935, and again for the year 1936 on crop-sharing plan. He saw the house painted at the expense of Oliver, and saw wood cut from the land. He knew that in August, 1936, before his mother died in October, 1936, W. B. Oliver, Jr., rented the land to someone else for the year 1937. He vacated the land, after the death of his mother, upon notice from ~W. B. Oliver, Jr. He saw that a pack house and small smoke house had been built on the land. And, in the face of these facts, and with this knowledge, he says, “I did not make any objection to the sale or raise any question about it, and never did make any protest to anyone or tell anyone that I had or claimed any interest in the land after the sale until the institution of this action.” Nearly eight years elapsed between those dates. Acquiescence by plaintiff for so long a period, in the light of the circumstances and of his conduct, is such laches as should prevent a repudiation of the sale at this date — irrespective of any statute of limitation. Teachey v. Gurley, 214 N. C., 288, 199 S. E., 83. See also Jones v. Stewart, 212 N. C., 228, 193 S. E., 143; Wolfe v. Land Bank, supra. As stated by Barnhill, J., in the Teachey case, supra, “Under such circumstances, one whose laches is so pronounced cannot successfully seek relief in a court of equity.” Plaintiff, however, contends that in view of the fact that his interest in the land was subservient to the outstanding life estate which defendant W. B. Oliver, Jr., acquired on 5 January, 1934, and under, which Oliver was entitled to possession, his renting of the land should be taken to be under Oliver’s ownership of the life estate, rather than under the title acquired by him at the mortgage sale. Even so, the undisputed facts are that plaintiff, in obedience to a notice from W. B. Oliver, Jr., vacated the land after the expiration of that life estate, and, with full knowledge, revealed by the facts hereinbefore stated, remained silent and made no protest for nearly five years, and until the institution of this action. Such neglect under the circumstances is fatal to any rights which he may have had. The judgment below is Affirmed.