Smith v. Greensboro Joint Stock Land Bank

Winborne, J. The demurrers presented on this record raise this question: Can a mortgagor unite in a complaint both a cause of action against the mortgagee and its subsequent grantees to set aside foreclosure sale under the mortgage at which the mortgagee becomes the purchaser, and deeds subsequently executed to purchasers with notice, and a cause of action against the mortgagee for damages resulting from such foreclosure sale? The decisions of this Court say “No.” The uniform decisions of this Court hold that “Where a mortgagee of lands purchases at his own sale, directly or by an agent, though he may convey to the agent and have the latter reconvey to him, the effect is to vest the legal estate in the mortgagee in the same plight and condition as he held it under the mortgage, subject to the right of the mortgagor to redeem,” Averitt v. Elliott, 109 N. C., 560, 138 S. E., 785, unless in some way he releases or loses that equity. . . . The sale by the mortgagee is not void, but only voidable, and, ordinarily, can be avoided only by the mortgagor or his heirs and assigns. Joyner v. Farmer, 78 N. C., 196; Whitehead v. Whitehurst, 108 N. C., 459, 13 S. E., 166; Averitt v. Elliott, supra; Shuford v. Bank, 207 N. C., 428, 177 S. E., 408; Davis v. Doggett, 212 N. C., 589, 194 S. E., 288. If the facts be true as alleged, it is open to plaintiff, mortgagor, (1) “to ratify the sale and accept the proceeds or settle on that basis,” or (2) to pursue one of two remedies: (a) She “may treat the sale as a nullity and have it set aside.” This she seeks to do in the first cause of action; or (b), acting in repudiation of the sale, she may sue the mortgagee for the wrong done in making such a sale, and hold it liable for the true worth of the property. This she seeks to do in her second cause *346 of action. Froneberger v. Lewis, 70 N. C., 456, and 79 N. C., 426; Brothers v. Brothers, 42 N. C., 150; Patton v. Thompson, 55 N. C., 285; Bruner v. Threadgill, 88 N. C., 361; Burnett v. Supply Co., 180 N. C., 117, 104 S. E., 137. In the first remedy plaintiff disaffirms the sale, and in the second, while acting in repudiation of it as unlawful, she permits it to stand. The two causes are, therefore, inconsistent. Plaintiff cannot at the same time enjoy both. In Machine Co. v. Owings, 140 N. C., 503, 53 S. E., 345, quoting from 7 Enc. Pl. & Prac., 362, it is said in part: “No suitor is allowed to invoke the aid of the courts upon contradictory principles of redress upon one and the same line of facts.” In Lanier v. Lbr. Co., 177 N. C., 200, 98 S. E., 593, Jefferson Lanier, after conveying the land in question to plaintiff, then a minor, and before the registration of deed to plaintiff sold and conveyed the timber to Blades Lumber Co., which thereafter sold and conveyed same to Roper Lumber Co. Speaking for the Court, Allen, J., said: “The two causes of action alleged in the complaint, one against the Roper Lumber Co. to set aside the deeds under which it claims and to recover damages for cutting the timber on the land, and the other against the administrator and heirs of Jefferson Lanier to recover the purchase money of the land, are inconsistent and cannot be prosecuted at the same time, as one repudiates the deed executed to the Blades Lumber Co. and the other affirms it.” In the case of Lykes v. Grove, 201 N. C., 254, 159 S. E., 360, speaking for the Court, Stacy, C. J., said: “Can a plaintiff unite in the same complaint an action for the rescission of a contract and one for its breach? The decisions are to the effect that he may not, as this would be to deny and affirm the contract at the same time — 'to blow hot and cold in the same breath.’ The rights are opposed and the remedies are inconsistent,” citing numerous cases. The causes of action that may be joined are classified in O. S., 507, which provides: “But the causes of action so united must all belong to one of these classes, and, except in actions for foreclosure of mortgage, must affect all the parties to the action.” Roberts v. Mfg. Co., 181 N. C., 204, 106 S. E., 664; Bank v. Angelo, 193 N. C., 576, 137 S. E., 705; Sasser v. Bullard, 199 N. C., 562, 155 S. E., 248; Wilkesboro v. Jordan, 212 N. C., 197, 193 S. E., 155. In the ease at hand the first cause of action affects all of the defendants. The second affects only the defendant Land Bank. Hence there is misjoinder of" parties. It is well settled that when there is a misjoinder, both of parties and of causes of action, and a demurrer is interposed on this ground, the *347 demurrer should be sustained and the action dismissed. Cromartie v. Parker, 121 N. C., 198, 28 S. E., 297; Morton v. Tel. Co., 130 N. C., 299, 41 S. E., 484; Thigpen v. Cotton Mills, 151 N. C., 97, 65 S. E., 750; Campbell v. Power Co., 166 N. C., 488, 82 S. E., 842; Roberts v. Mfg. Co., supra; Shore v. Holt, 185 N. C., 312, 117 S. E., 165; Harrison v. Transit Co., 192 N. C., 545, 135 S. E., 460; Bank v. Angelo, supra; Sasser v. Bullard, supra; Wilkesboro v. Jordan, supra. Counsel for plaintiffs rely upon Council v. Land Bank, 211 N. C., 262, 189 S. E., 777. Reference to that case, however, discloses that the Land Rank answered, and only defendants Blount, who claimed to be innocent purchasers, demurred on the ground that the complaint did not state facts sufficient to constitute cause of action against them. The question of misjoinder of parties and of causes of action was not presented. We hold that there is misjoinder both of causes of action and of parties, and the demurrer should be sustained and the action dismissed. Therefore the judgment below is Reversed.