Graham v. . Graham

Stacy, C. J. In 1943, J. J. Graham, Sr., died seized of a farm in Mecklenburg County and leaving him surviving two sons, who are now contending over the old home place or the rooftree. Both appeal from the outcome in the court below, each presenting a single question vital to his position. 1. Plaintiff’s appeal: The plaintiff is satisfied with the answer to the first issue, and contends that the jury should have been instructed to answer the second and third issues in his favor also, if the evidence is to be believed. The court instructed the jury that “a trustee in the sale of land under a deed of trust cannot bid for either party,” and “the court has concluded, as a matter of law,” that, here, if the trustee “requested someone else to bid the land in for the plaintiff,” the man who did the bidding was the trustee’s agent, and therefore the trustee did the bidding himself, and that makes a voidable sale. The instruction seems to be predicated on the case of Davis v. Doggett. 212 N. C. 589, 194 S. E. 288. In that case, however, it was conceded that the attorney who conducted the sale and bid in the property was acting as agent for both seller and buyer. Here, the situation is quite *567 different. Tbe foreclosure was conducted by the Trustee. The property was bid in by the plaintiffs agent, J. M. Dwelle. The case of Mills v. Mutual B. & L. Asso., 216 N. C. 664, 6 S. E. (2) 549, is likewise distinguishable. The plaintiff was the cestui in the deed of trust. In the absence of fraud or collusion, he was entitled to buy at the foreclosure sale. Bunn v. Holliday, 209 N. C. 351, 183 S. E. 278. Of course, what he could do himself, he could do through an agent. On the record as presented the instruction must be held for error. 2. Defendants’ appeal: The defendants are satisfied with the answer to the second and third issues, and insist with confidence that error was committed by the trial court in instructing the jury to answer the first issue in the negative. There is much in the evidence to suggest a want of charity or even generosity on the part of the plaintiff towards his less fortunate brother. Nevertheless the. first issue speaks to undue influence or fraud in the procurement of the deed of trust, and the record is barren of any overreaching on the part of the plaintiff at the time of its execution by his father. lie may have misled his brother in subsequent correspondence, but not his father at the time of its execution. At least, such is the record as it now appears. Whether the defendant has any remedy in equity under the doctrine of a constructive trust is not presented. Hence, the result : On Plaintiff’s Appeal, New trial. On Defendant’s Appeal. No error.