Wachovia Bank & Trust Co. v. Hudson

Stacy, C. J. Is the receiver’s deed, duly executed as to form, sufficient to convey title to the lands covered by the deed of trust? An affirmative answer to this question will uphold the judgment, while a negative one will reverse it. It was held in Strauss v. Building & Loan Asso., 117 N. C., 308, 23 S. E., 450 (decided in 1895), on rehearing, 118 N. C., 556, 24 S. E., 116 (decided in 1896), that a receiver of an insolvent building and loan association, in the absence of an order of court, was not authorized to foreclose a mortgage made to the corporation in which the corporation alone was empowered to foreclose by sale. This was subsequently approved in Thompson v. Loan Asso., 120 N. C., 420, 27 S. E., 118 (decided in 1897). But the Legislature, thereafter, at its regular session, 1901, amended the law, and specifically clothed receivers of corporations with the power and authority to “foreclose mortgages, deeds of trust, and other liens executed to the corporation,” now C. S., 1209; and further provided in the same act, ch. 2, Public Laws 1901, now C. S., 1210, that “all of the real and personal property of an insolvent corporation, wheresoever situated, and' all of its franchises, rights, privileges and effects, upon the appointment of a receiver, forthwith vest in him, and the corporation is divested of the title thereto.” *690 It is the contention of the plaintiff that under the foregoing statutory provisions, which were in force at the time of the execution of the present deed of trust, the receiver of the trustee is by implication, if not expressly, authorized to execute the power of sale in the deed of trust, especially as the instrument provides for the payment of a commission of 3 per cent to the trustee, its successor or assignee, all of which is confirmed by order of court. It was said in the recent case of Mitchell v. Shuford, ante, 321, that the provisions of a deed of trust are contractual, but the general laws of the State, in force at the time of the execution of a contract, enter into and become as much a part of the contract as if they were expressly referred to or incorporated in its terms. House v. Parker, 181 N. C., 40, 106 S. E., 131; Mfg. Co. v. Holladay, 178 N. C., 417, 100 S. E., 597. . Hence, under the law in force at the time, and in view of the provisions of the present deed of trust and the order of court directing the receiver to foreclose all mortgages, deeds of trust, and authorizing it to effect the sale of all other properties pledged to the insolvent trustee, we are of opinion that the deed tendered is sufficient in law to convey to the defendants a fee simple title to the lands covered by the deed of trust. This was the holding of the Superior Court, and the judgment is . - Affirmed.