Berry v. . Boomer

*68 BbowN, J. This action involves title to a tract of land containing about 25 acres. The action is brought to restrain defendants from trespassing thereon. The land belonged to Yirginia Fisher, who conveyed it to Mary J. Harris, who with her husband executed a mortgage thereon to Yirginia Fisher for the purchase-money, which has never been paid. On 29 December, 1903, Mary J. Harris and husband sold and conveyed the land with full covenant of warranty to plaintiff. On 16 January, 1906, plaintiff reconveyed to Mary J. Harris 25 acres of this tract of land, with a covenant of warranty.' Mary J. Harris and husband are both dead, and defendants are their heirs at law. After the death of Mary J. Harris and husband, and also of Yirginia Fisher, the purchase-money debt being unpaid, Statz Credle, administrator of Yirginia Fisher, -advertised the land for sale. At sale plaintiff demanded that the administrator sell the 25 acres belonging to Mary J. Harris first, and if that did not bring sufficient to pay the purchase-money debt, that the administrator then sell the remainder of "the 150-acre tract. The administrator did this, and plaintiff became the purchaser. The administrator executed a deed to him for the '25 acres, which brought sufficient to pay the mortgage debt in full; 1. The fact that plaintiff had reconveyed the 25 acres to' Mary J. Harris with covenant of warranty, even if it had been a full covenant, did not take from plaintiff his equitable right to have the 25 acres sold in exoneration of the remaining land which had been conveyed to him by Mary J. Harris, with specific warranty against incumbrances as'well as a general warranty as to title. Plaintiff was not compelled to resort to law to enforce the well established equitable right if the administrator was willing to perform his duty in that respect. The purchase-money was the personal debt of Mary J. Harris, and it was her duty to pay it. There is no evidence or even allegation that plaintiff agreed to pay it as part of the purchase-money when he bought the land from Mrs. Harris. Besides, plaintiff did not warrant against incumbrances when he executed the deed for the 25 acres. He did not warrant the title, except as “against claims of themselves and heirs forever.” 2. The defendants contend that inasmuch as the deed from Yirginia Fisher’s administrator to the plaintiff did not set out in full that the terms and conditions contained in the mortgage were complied with, that the sale and the deed thereunder are void. The deed in question uses this language: “The said Statz Credle, administrator, did according to said conditions expose to public sale the property-therein mentioned.” *69 Tbe position, is untenable, and is not ground for a nonsuit. Tbe presumption of law is in favor 'of tbe regularity in tbe execution of tbe power of sale; and if there was any failure to advertise properly, tbe burden was on tbe defendants to show it. Jenkins v. Griffin, 175 N. C., 184; Cawfield v. Owens, 129 N. C., 288; Troxler v. Gant, 173 N. C., 425. Tbe presumption being in favor of tbe regularity of tbe sale, and there being no evidence to tbe contrary, tbe sale was not void. 3. It is contended that tbe administrator of Mrs. Harris bad no right to sell tbe 25 acres separately, but that be should have sold tbe whole 150 acres. This position cannot be maintained. Tbe plaintiff bad right under tbe facts in evidence to have tbe 25 acres belonging to Mrs. Harris sold in exoneration of tbe land conveyed by her to him. It is true-that tbe mortgage did not give to tbe administrator of tbe mortgagee right to sell tbe land in lots or parcels, but tbe law vests in him a certain discretion in tbe matter, bis primary duty being to see that tbe property brought tbe amount of tbe indebtedness, and bis secondary duty being to see that tbe sale should cause as little injury as possible to others. Tbe rule is stated in 27 Cyc., p. 1480: “In other cases, and unless otherwise directed by tbe mortgage or deed of trust, tbe question of selling tbe property en masse or in parcels rests in tbe sound discretion of tbe trustee or other person making tbe sale.” If tbe trustee or administrator in making tbe sale acts arbitrarily or unfriendly, and so divides tbe land as to injuriously affect its value at tbe sale, tbe persons injured may seek tbe aid of a court of equity in setting aside tbe sale. It may be voidable, but is not void. There is nothing of that nature presented by this record. Reversed.