Everhart v. . Adderton

ClaeK, C- J. Tbe mortgage was regularly executed and covered tbe entire tract of land and upon default tbe sale was duly advertised and Fannie Foster was tbe last and bigbest bidder. There is no allegation, suggestion, or finding that there was any fraud, oppression, or irregularity as to tbe execution and registration of tbe mortgage or in tbe advertisement and sale. At tbe time of tbe execution of tbe mortgage tbe plaintiffs Frank Clemmons and George Foster were cotenants. Tbe fact that subsequent to tbe execution of tbe mortgage, and before tbe sale, they severed tbe cotenancy in no wise affected tbe rights of tbe mortgagee, who bad a lien upon tbe entire undivided tract and legally exercised tbe power of sale as to tbe whole tract. Tbe plaintiff Clem-mons having sold bis half interest in tbe land to Everhart, has no interest in this action. Tbe plaintiff Everhart having bought Clemmons’ interest, after tbe sale acquired nothing except Clemmons’ right to receive one-balf the proceeds of tbe sale, if any, after payment of tbe costs of tbe sale and tbe mortgage debt. Tbe defendant Adderton, mortgagee, could not be compelled to accept one-balf tbe mortgage note and release tbe one-balf tbe land which bad been assigned to Clemmons in tbe partition between him' and Foster. Fannie Foster, having bought tbe entire tract of land, could not be required to accept one-balf tbe land on payment of one-balf of tbe bid. There is no equity shown to set aside tbe sale duly made under tbe power in tbe mortgage, and tbe court properly adjudged that tbe mortgagee should accept payment of tbe bid and execute title to tbe purchaser for tbe entire tract. Tbe delay of payment for 19 days after tbe sale is not per se a forfeiture of ber rights by tbe purchaser. It is not alleged or shown that tbe mortgagee demanded payment of said bid or that payment was refused. Tbe right of tbe purchaser to enforce tbe contract was complete when tbe property was knocked off to tbe bidder and tbe auctioneer signed tbe memorandum. Dickerson v. Simmons, 141 N. C., 325; 27 Cyc., 1486. It is true that tbe terms of sale in tbe mortgage was for cash, but tbe advertisement and’ sale, it seems, were made in strict conformity with such terms. 27 Cyc., 1481 (7). It was no deviation that tbe mortgagee *406 did not require the cash to be paid over till 19 days has elapsed. If any damage had resulted from such delay, the mortgagee could have refused to execute title. But no opposition is made by the mortgagee in this case, nor is any refusal to comply on the part of the purchaser shown. This is not the case of a mortgagee buying at his own sale. In such case, the mortgagor being in the power of the mortgagee, the mortgage remains a mortgage notwithstanding the sale. In McLawhorn v. Harris, 156 N. C., 107, it is said that destroying the unity of possession of cotenants in common will dissolve the tenancy and thereafter a former tenant in common may acquire the entire property. In this case the tenancy in common having been dissolved before the sale, there was no reason why Foster, himself, one of the former cotenants, might not have bought at this sale. Indeed, though a cotenant who buys in an outstanding title or lien upon the common property must hold it for the common benefit, he may become the purchaser at the sale of land to pay debts and hold the entire tract 'in his own right for the sale destroys the cotenancy. Jackson v. Beard, 148 N. C., 29. Where one tenant in common has caused the sale by his failure to pay his share of the debt, he is not allowed to buy and hold for his own benefit because of the opportunity for fraud. Reed v. Buchanan, 61 W. Va., 552, cited in McLawhorn v. Harris, supra. But in this case none of the debt was paid and the entire property having been sold under the mortgage, there is no reason why either tenant in common could not have bought the entire property, more especially as the unity of possession had been dissolved. Sutton v. Jenkins, 147 N. C., 16; 17 A. & E., 711. In this case, moreover, the purchaser was not a tenant in common, but merely the wife of one of them, and had joined in the mortgage simply to release her contingent right of dower. Affirmed.