Averitt v. . Elliott

Avery, J.: Where a mortgagee of land purchases at his own sale, directly or by an agent, though he may convey to the agent and have the latter reconvev to him, the effect is *563 to vest the legal estate in the mortgagee in the same plight and condition as he held it under the mortgagee, subject to the right of the mortgagor to redeem. Joyner v. Farmer, 78 N. C., 198. The sale by the mortgagee is not void, but only voidable. Joyner v. Farmer, supra. The mortgagee has the right to recover possession at any time, as against the defaulting mortgagor, in an action brought for that purpose, whether he has fraudulently put forward an agent to buy at his own sale or not. Wittkowski v. Watkins, 84 N. C., 458. If John Averitt bought at his own sale, and then conveyed to the plaintiff Decyrus Averitt, the legal estate passed to the latter, upon -which he was entitled to recover in an action involving title and right to possession only. Joyner v. Farmer, supra. If the mortgagor wished to avoid the sale on the ground of fraud, he ought to have alleged the fraud in his answer- It was not sufficient simply to prove it. It is essential that there shall be allegata in the answer, as well as probata on the trial, in order to make available an equitable right or other new matter as a defence. Willis v. Branch, 94 N. C., 143; Rountree v. Brinson, 98 N. C., 307; Montague v. Brown, 104 N. C., 165; Ellison v. Rex, 85 N. C., 77. As the issue was submitted to the jury, the defendant might have been allowed, in the progress of the trial, to amend his answer and set up the fraudulent purchase as a defence. The Court will doubtless permit him to amend before another trial, so that., with due notice, the facts may be fully developed by both parties. Willis v. Branch, supra. But as the plaintiff has excepted to that portion of the charge in reference to the fourth issue,^and as it appears that the defendant has relied solely upon the inability of the plaintiff to show the legal title in himself, a new trial must be awarded. This is in accordance with the uniform rule adopted by this Court. *564 It is true, as suggested by counsel, that a. deed may be directly attacked on trial of an action for possession for incapacity in the maker, fraud in the factum, because void under 13th and 27th Elizabeth, or because it was executed in the face of a statutory prohibition. Mobley v. Griffin, 104 N. C., 112; Gilchrist v. Middleton, 107 N. C , 679; Helms v. Green, 105 N. C., 259. But the deed offered by the plaintiff was not void, but voidable. It left in the defendant an equitable right which could have been avoided only by the mortgagor and his heirs, and which might be confirmed by the mortgagor by release, or conduct amounting to an abandonment, or working an estoppel in pais. Joyner v. Farmer, supra. For want of specific allegations setting up the defence that the plaintiff claimed under a fraudulent conveyance, a new trial will be awarded. Error.