General Realty Co. v. Lewis

ClakiísoN, J. The question involved : Is the defendant’s objection to plaintiff’s title sufficiently grounded to avoid a decree of specific performance? We think so. The deed of trust from H. 0. Buzzaird and wife, Ida L. Buzzaird, to Ernest F. Smith, trustee, dated 1 September, 1927, is to secure certain gold notes for money loaned, in the sum of $4,500. The same was duly recorded in Henderson County, N. C., Book 124, page 113, registry of deeds. It is set forth in the record, “Exhibit A,” as a part of the agreed statement of facts. The alternate trustee in the deed of trust sold the land after due advertisement, and plaintiff claims under the sale. The language of the deed of trust in controversy relating to the provision for sale in case of default is as follows: “In the event of a breach of any one of the aforesaid covenants and agreements, or in case of default in the payment of any note secured hereby or any installment of interest thereon, according to the terms thereof, . . . And said holder or holders (of any or all of the first lien notes) may immediately enter into and upon the above described premises and sell and dispose of the same, and also all benefit and equity and redemption of the said grantor, unless such equity and benefit of redemption is reserved by law, and out of the proceeds of such sale to retain the principal and interest which shall then be due on said first lien gold note or notes and junior lien notes hereby secured, and such other debts that may be due and against said premises, together with the cost and charges of foreclosure, or may sell said premises at public auction, after complying with the *49 statutes of tbe State wherein tbe property described herein is located, in reference to foreclosure and sale of real property; and tbe purchaser thereof shall not be required to see to tbe application of tbe purchase money and of tbe proceeds of said sale.” Tbe plaintiff calls attention to other provisions in tbe deed of trust: “Tbe granting clause reads: 'Does by these presents grant, bargain, convey, and warrant in fee simple unto tbe said trustee, bis successors and assigns, forever, tbe following described real estate.’ Tbe habendum clause reads: 'To have and to bold tbe above described premises, with all appurtenances and fixtures, unto tbe said, party of tbe second part, bis successors and assigns, forever, for tbe purpose, uses, and trusts set forth.’ It is provided in tbe acceleration clause that tbe indebtedness shall, 'at tbe option of tbe legal bolder or holders of any or all of said first lien gold note or notes, or by tbe guarantor or guarantors, if any, or tbe trustee, become immediately due and payable. . . .’ The trustee shall conduct tbe actual sale is also shown by subsequent provisions of tbe trust deed, wherein it is provided that in case of sale, tbe proceeds shall be applied: '(a) To tbe payment of reasonable compensation of tbe trustee, its agents, attorneys, and counsel, and all costs of advertisement, notices, sale, and conveyance, and other necessary expenses in case of sale, under tbe power of sale herein conferred.’ All proper expenses of tbe trustee incurred as herein provided, including attorneys’ and agents’ fees and tbe expenses of litigation, shall be paid out of tbe proceeds of tbe sale of tbe property described herein should a sale be bad. 'And in case of- foreclosure of this trust deed, in any court of law or equity, or by action or advertisement, there shall be allowed tbe trustee in such proceedings all costs and charges of such foreclosure, together with tbe maximum attorneys’ fees for foreclosure of mortgages allowed under tbe laws of tbe state wherein this instrument is recorded.’ ” Tbe plaintiff contends: “Applying tbe rule that an instrument is to be construed from its four corners and tbe intent of tbe parties gathered from tbe instrument in its entirety, . . . that tbe trustee bad a right to both advertise, sell, and make deed to tbe purchaser, and that tbe defendant is without sufficient grounds to avoid a decree of specific performance,” citing Benton v. Lumber Co., 195 N. C., 363, at p. 365, as follows: “In tbe construction of deeds these principles seem to be settled: (1) Tbe entire deed must be considered and such construction of particular clauses must be adopted as will effectuate tbe intention of tbe parties; (2) such construction will be adopted as, if possible, will give effect to every part,” etc. We cannot bold as plaintiff contends we should. Tbe deed of trust soems, in its various provisions, .to be drawn by a draughtsman not *50 familiar with, our North Carolina forms and laws on the subject. It seems to have been drawn in Ohio. If a power of sale is given, it appears to be to the “bolder or holders” of any or all of the first lien notes. In Eubanks v. Becton, 158 N. C., 230 (233), it is written:' “Powers of sale in a mortgage are contractual, and as there are many opportunities for oppression in their enforcement, courts of equity are disposed to scrutinize them, and to hold the mortgagee to the letter of the contract. If a different view should prevail and we could dispense with some stipulation in the power because we could not see that injury had ensued from failure to observe it, we could practically destroy the contract of the parties.” “The courts look with jealousy on the power of sale contained in mortgages and deeds of trust, and the provisions are strictly construed.” Alexander v. Boyd, 204 N. C., 103 (108); Mitchell v. Shuford, 200 N. C., 321; Ins. Co. v. Lassiter, 209 N. C., 156; Woodley v. Combs, 210 N. C., 482 (486). By a long unbroken line of decisions, mortgages and deeds of trust with power of sale must be strictly construed. Courts look with jealousy on the power of sale in these instruments and require the power of sale to be clearly set forth. The contract as written must prevail. The implied provisions cited by plaintiff are contrary to the language that in case of default the sale shall be made by “said holder or holders” (of any or all of the first lien notes). Under the peculiar provisions of the deed of trust perhaps the only safe method is by foreclosure by suit in court and all interested made parties. Por the reasons given, the judgment of the court below is Affirmed.