Ricks v. . Brooks

Walker, J., after stating the facts as above: We may as well state m the beginning that this is not an action for the correction of a deed, or for its reformation, and the doctrine as to the quantity of proof required in such a case does not apply, and the contention of the defendant, in this respect, cannot be sustained. In an action for reformation it must be alleged and shown, by evidence clear, strong, and convincing, that the instrument sought to be corrected failed to express the true agreement of the parties, because of a mistake common to both parties, or because of the mistake of one party induced by the fraud or inequitable conduct of the other party, and that by reason of ignorance, mistake, fraud, or undue advantage something material has been inserted, or omitted, contrary to such agreement and the intention of the parties. Ray v. Patterson, 170 N. C., 226; Newton v. Clark, 174 N. C., 393. But this rule does not apply where the purpose is not to reform, but to set aside the instrument for fraud, undue influence, or upon other equitable ground. Poe v. Smith, 172 N. C., 67, and Boone v. Lee, 175 N. C., 383, citing Harding v. Long, 103 N. C., 1, and other cases. The plaintiff asserts that the whole transaction was but a fraudulent attempt to deprive him of bis land, and not a genuine and bona fide effort to foreclose the mortgage by sale under the power in order to pay the debt secured thereby. The relief asked and given was that the deeds, as conveyance of bis interest in the land, be set aside or annulled, agreeing though that they are valid for the purpose of transferring the interest of the Brooks Mercantile Company, as mortgagee, or to subrogate the grantees in their deed to its rights as such. This is all that was done, except that the court ordered an account to be taken of the debt, and if it is not paid, that further relief be granted for its payment;. But these deeds are void as to plaintiff, except as passing the right of the Brooks *208 Mercantile Company, upon another ground, because it appears that the sale of the land was advertised to take place on Tuesday, 12 March, when in fact it was made on Monday, the 11th of that month. The sale that was advertised never did take place, while the one that was actually made was not advertised at all; or, to put it in another way, the advertised sale was abandoned by failing to make it on the day named, while there was no notice given as to the one made on Monday, 11 March. Both the mortgage in this case, and the statute, Rev., 641, contemplated necessarily that the sale be made on the day named in the advertisement, otherwise there might not be any competitive bidding. The following was held to be the law in Eubanks v. Becton, 158 N. C., 231, as stated in the syllabus: 1. When a power of sale is given in a mortgage, a strict compliance with the terms on which it is to be exercised is necessary; and when it is prescribed that the notice of sale be posted at the courthouse door and four other public places, a sale thereunder is invalid if the notice is posted at the courthouse door and three other public places. The effect of Rev., 641, was not before the Court in this case, and it was not construed. 2. A. purchaser at a sale of lands under a mortgage with power of sale is a purchaser with notice of the terms under which the power of sale, as therein expressed, must be exercised, and his deed is invalid when the terms of sale of the 'mortgage antedating Rev., 651, are not in strictness pursued. 3. In order to waive an irregularity in the exercise of the power of sale contained in a mortgage, it is necessary that the acts alleged to be a waiver be committed with the knowledge of the one who does them; and a mortgagor after an invalid sale for failure of the mortgagee to strictly observe the terms thereof, without knowledge of the irregularity, does not waive it by subsequently renting the lands from the purchaser. 4. A deed of mortgaged lands made to a purchaser at a foreclosure sale, which is inoperative, is valid only as an equitable assignment of the note and mortgage, and the mortgagor, nothing else appearing, is' entitled to an accounting. That case resembles this one in several of its features. See, also, Mayers v. Carter, 87 N. C., 146; Wiltsie on Mortgage Foreclosure, 1 Vol. (3 ed.), sec. 318. The mortgagee’s deed recites the fact that the sale was made on Monday, and this accords with the proof in the case. As to the position taken by the appellant that the complaint does not state a cause of action, upon which he bases a motion, in this Court, to-dismiss the case, we are of the opinion that a cause of action is stated, though defectively. There is a wide difference between the statement of a defective cause of action, that is, when no cause of action is stated, *209 and the defective statement of a cause of action. Johnson v. Finch, 93 N. C., 205; Wilson v. Sykes, 84 N. C., 215. In the latter case, if there is no request to have the pleading made more certain or definite, and no demurrer, the defective statement is waived, and if an answer is filed, the defect in stating the cause of action may be aided thereby if sufficient matter appear therein for the purpose. Garrett v. Trotter, 65 N. C., 430. We cannot grant the motion to dismiss, but, if necessary, would allow plaintiff to amend so as to conform the pleading to the facts proved, as such would not change substantially the cause of action. Rev., 507. In proper cases, we may dismiss in this Court, but this is not a case which calls for the exercise of the power. “The court or judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” 1 Pell’s Revisal, sec. 509, and note, in which the cases are cited. Pleadings should be liberally construed for the purpose of determining their effect and with a view to substantial justice between the parties. Rev., 495; Blackmore v. Winders, 144 N. C., 212; Brewer v. Wynne, 154 N. C., 467; Muse v. Motor Co., 175 N. C., 466. It was competent for plaintiff to attack any deed in defendant’s chain of title as invalid in law, because of want of capacity or power to make it. Mobley v. Griffin, 104 N. C., 112; Jones v. Cohen, 82 N. C., 75; Fitzgerald v. Shelton, 95 N. C., 519. This ease has been tried upon its merits, and the plaintiff has won upon the facts. Defendant showed by bis answer that be understood the cause of action, and has actually supplied the omission, if any, in the complaint. If be found it too meager in its allegations be bad a remedy by asking that it be made more definite and certain by amendment. Rev., 496; Blackmore v. Winders, supra; Allen v. R. R., 120 N. C., 550; Conley v. R. R., 109 N. C., 692; Oyster v. Mining Co., 140 N. C., 138. Instead of availing himself of the several remedies above mentioned, the plaintiff trusted bis case to the jury upon the issue, and having bad a fair chance to present it, bis motion does not commend itself to our favorable consideration. He still has the right to foreclose the mortgage, which has been allowed to him by the order of the court, and be must be content therewith. We find no error in the case, and affirm the judgment. No error.