Tidewater Brokerage Co. v. Southern Trust Co.

Connor, J. Where land conveyed by a mortgage or deed of trust has been sold by the mortgagee or trustee, for the purpose of foreclosure, under the power of sale contained in the mortgage or deed of trust, pursuant to an order of the clerk of the Superior Court of the county in which the land is situate, under the provisions of C. S., 2591, the clerk has the power to make all such orders as may be just and necessary to safeguard the interests of all parties. By virtue of this statutory authority, the clerk has the power to make an allowance to the mortgagee or trustee for his services in making the sale, to be retained by him from the proceeds of the sale. From an order making such allowance, a party interested in the land or in the proceeds of the sale, may appeal to the judge, who upon such appeal may affirm, reverse or modify the order of the clerk; in the absence of such appeal, the order of the clerk is final and conclusive. In re Jermgan, 200 N. C., 636, 156 S. E., 96; In re Hollow ell, 194 N. C., 222, 139 S. E., 169. *184 In the foreclosure involved in the instant case, there was no formal order of the clerk of the Superior Court, making an allowance to the trustee; but in the absence of any objection to the amount retained by the trustee as its commissions, as shown by the statement of its final account, which was recorded by the clerk, it will be presumed that the clerk approved the amount retained. There was no objection by any party interested in the land or in the proceeds of the sale, and therefore no appeal to the judge. The final account of the trustee cannot be attacked collaterally, as the plaintiff has sought to do in the instant case. The judge was without power, upon the facts found by him, to render judgment in this action, and for that reason the judgment is Reversed.