Woodley v. . Combs

Clarkson, J. The defendants contend that plaintiff is suing for $1,250 — one-half of the principal of the notes in controversy, which she owned but has elected to ratify the sale, and by so doing she can recover only her part of what the sale brought, and this amount has been placed in the clerk’s office for her. Therefore, the judgment of nonsuit is correct. But the amendment goes further and says: “But in alleging that she waives the said wrong, does not intend to say that the sale is in any respect ratified,” etc. In plaintiff’s prayer she says: “And for such rights at law and equity as the allegations of this complaint may entitle her to and for costs and for general relief.” We think, under the allegations of the complaint, she is entitled to relief, that the conveyances must be set aside, as the trustee, under the clear language of the deeds of trust, had no right to sell without plaintiff making application, or her assignee, or any person entitled to the money due thereon. There is no evidence that the terms of the deed of trust were complied with in this respect or that there was a ratification. It is well settled that a complaint will be liberally construed so as to do substantial justice, and will be sustained when, from its general scope it appears that the plaintiff has a cause of action, although not stated with technical accuracy. It is also well settled that a party can recover judgment for any relief to which the facts alleged and proven entitle him, whether demanded in the prayer for judgment or not. McNeill v. Hodges, 105 N. C., 52; Hendon v. North Carolina R. Co., *486 127 N. C., 110. The facts set forth in the complaint, and not the prayer, ordinarily determine the basis of plaintiff’s relief. The deeds of trust provide: “If the said "Walter Holloway and wife shall fail or neglect to pay interest on said bonds as the same may hereafter become due, or both principal and interest, at the maturity of the bonds, or any part of either, then on application of said V. E. Woodley, S. M. Combs, or assignee, or any other person, who may be entitled to the moneys due thereon, it shall be lawful for and the duty of the said D. G. Combs to advertise,” etc. On the entire record there is no evidence that plaintiff, or any assignee, or any other person who may be entitled to the moneys due thereon, made application to defendant D. Gr. Combs, trustee, to sell the lands. The provision is important and material and put in, no doubt, to protect plaintiff from the very thing which happened. “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). In Ins. Co. v. Lassiter, 209 N. C., 156 (159), it is said: “The trustee in a deed of trust is usually selected to act for both the owner and holder of the indebtedness. As trustee he acts in a dual capacity to carry out the provisions of the deed of trust. . . . All parties of a trust deed are entitled to have the power of sale carried out as written. Mitchell v. Shuford, 200 N. C., 321. Power of sale in mortgages pr deeds of trust is strictly construed. Alexander v. Boyd, supra; N. C. Mortgage Corp. v. Morgan, 208 N. C., 743.” For the reasons given, the judgment of the court below is Reversed.