Hussey v. . Hill

Fueches, J.: In 1883 the defendant, Hill, executed his note and mortgage to the plaintiff, Hussey, and in 1884 he executed a note and second mortgage on the same land to the plaintiff, Stanford. After this, and while the plaintiff, Hussey, was the holder and owner of the first note and *315 mortgage, the plaintiff, Stanford, sold and assigned his note and mortgage to the plaintiff, Hussey. That after the plaintiff, Hussey, had become the assignee of the Stanford note and mortgage, he sold and assigned the note and mortgage given to him in 1883, to one W. L: Hill. That said Hill, the assignee of-the plaintiff, Hussey, under the power of sale contained in the mortgage which he supposed authorized him to do so,, sold the mortgaged land to the highest bidder, having first advertised the same for the length of time prescribed in the mortgage, when one J. S. Wilson 1 ecame the purchaser — paid the purchase no oney and took a deed from said Hill. That after Wilson’s occupying the land for about one year, he sold the same to the defendant, Friday Hill, the mortgagor, and made him a deed in fee with warranty. This presents the case on appeal, and when it was before us at the last term of this court we were of the opinion that the question of defendant’s title, derived from Wilson, was not presented, and the case went off on a question of pleadings, in which this question was not considered. But since the opinion in this case was filed, the opinion of the court in Wagon Co. v. Byrd, 119 N, C., 460, has been filed, and although the opinion in Wagon Co. v. Byrd does not in express terms overrule the opinion filed in this case at the last term, it reverses the principle upon which this case was decided, and, in effect, does overrulethe opinion in this case. And for this reason the rehearing was granted the defendant, and we come now to consider the case on its merits. The first ground assigned in the petition is not tenable and is not true in fact. The 2nd, 3rd and 4th assignments appear to be substantially the same, and state the grounds upon which the rehearing was granted. But it is not necessary to consider these assignments specifically, as the *316 merits of the case were not passed upon in the former opinion, and we treat the case de novo. The note to the plaintiff, Hussey, was the evidence of the debt from defendant to him, and the mortgage was security for its payment. It was the same as to the not** and mortgage from defendant, Hill, to the plaintiff, Stanford. A mortgagee is the legal owner of the property which he holds in trust for the payment of the debt, and then for the mortgagor. Parker v. Beasley, 116 N. C., 1; Machine Co. v. Boggan, at this term. And the power of sale contained in the mortgage authorized Ilnssey to foreclose by sale and to convey the legal and equitable title to the purchaser. But when he sold the note to W. L. Hill and assigned the note and mortgage to him, the latter only became the equitable owner — the naked legal estate still remaining in the plaintiff, Hussey. Tnis assignment to W. L. Hill did not carry with it the-power of sale, and he only having the equitable estate in the land could not coniey the legal estate. 2 Jones on Mortgages, Sec. 1992; Williams v. Teachey, 86 N. C., 402; Dameron v. Eshridge, 104 N. C., 621; Strauss v. B. & L. Asso., 117 N. C., 308; Athins v. Crumpler, 118 N. C., 532. This being so, the sale of W. L. Hill to "Wilson and the sale of Wilson to the defendant, Friday Hill, were only equitable assignments of the note and mortgage from the defendant, Friday Hill, to the plaintiff, Hussey. This equitable assignment would have authorized W. I. Hill cr J. S. Wilson to have compelled a foreclosure and sale through an order of court and a commissioner. But this is not the case with the defendant, Friday Hill. He has no equity. Wnen he purchased the note, or the equitable interest in the note — his own note —it was not an *317 assignment to him, but a satisfaction. lie could not ask a court of equity to sell his land to pay his debt. Upon Friday Hill becoming the owner, the equitable owner of tbe note, it was in law discharged, and this left the land subject to the second mortgage. It was contended that, as Hussey became the assignee of the second mortgage before he sold the first note and mortgage to ~W. L. Hill, he was estopped to enforce the Stanford (second) mortgage. But we have re-examined this question and can see no elements of estoppel in it. In the first place, both mortgages were on record, and it is not alleged that Hussey said anything to Hill calculated to deceive him. If Hussey had sold Hill the second mortgage, without saying anything to him about the first mortgage, there might have been some ground for complaint. But how there can be, when he sold the first mortgage w bich was a prior lien to the Stanford mortgage, w.e cannot see. The Stanford mortgage did not stand in the way of the Hussey mortgage, and the assignee got all he could have gotten, whether Hussey or Stanford was the owner of the second mortgage. The question as to whether the warranty of the defendant, Friday Hill, in the Stanford mortgage estopped him from asserting title to the land under the Wilson deed, was learnedly discussed- by the defendant’s counsel. But it will be seen, from what we have said, that this question has no bearing on the decision of the case. The usual practice is to dismiss the petition to rehear where the judgment in the former opinion is not reversed. But as the former opinion «as not put upon the Merits of the case, we will not discuss the petition in this case, but affirm the judgment of the court below. Affirm ed.