Whitley v. . Powell

Clarkson, J. Tbe power of sale contained in tbe mortgage, and tbe subject-matter of tbe controversy, is as follows: “But if default be made in tbe payment of said notes, or either of tbem, or tbe interest on same, or any part of either at maturity, then and in that event it shall be lawful for and tbe duty of tbe said PL H. Powell or bis assignee to sell said lands hereinbefore described to tbe highest bidder, for cash (on tbe premises), first advertising same for thirty days in some newspaper published in Wilson County, and by posting notices in some conspicuous place in said county and at tbe courthouse door for at least twenty days before tbe sale.” In Hinton v. Hall, 166 N. C., p. 480, it was said: “It was true that failure to advertise according to tbe terms of tbe power of sale invalidates tbe sale. Eubanks v. Becton, 158 N. C., 230. But it is said that such sale is not absolutely void, but will pass tbe legal title. Eubanks v. Becton, supra; Brett v. Davenport, 151 N. C., 58. While such sale would be set aside as to tbe purchaser, a subsequent or remote grantee without notice and in good faith takes a good title against such defects or irregularities in tbe sale of which be bad no notice. 27 Cyc., 1494.” Kornegay v. Spicer, 76 N. C., 96; Shew v. Call, 119 N. C., 453; Fleming v. Barden, 127 N. C., 217; Ferebee v. Sawyer, 167 N. C., 201; Banking Co. v. Leach, 169 N. C., 706; Brewington v. Hargrove, 178 N. C., 146; Harvey v. Brown, 187 N. C., 365; Brown v. Jennings, 188 N. C., 160; Douglas v. Rhodes, ibid., 584. It appears in tbe case agreed: “On 11 June, 1917, a notice of tbe sale of tbe property under mortgage, signed by H. H. Powell, mortgagee, by bis attorney, was posted at tbe courthouse door in Wilson, North Carolina, and three other public places in Wilson County, in which notice was given that tbe mortgagee would sell tbe property because of default in tbe payment of tbe notes secured by tbe mortgage, on Monday, 16 July, 1917, at 12 o’clock noon, on tbe premises, in tbe town of Stantonsburg, North Carolina, and on 15 June, 1917, a notice was published in tbe Semi-Weekly Times as follows: ‘Sale of real estate: By virtue of tbe power of sale contained in tbe mortgage executed by J. PL Whitley to tbe undersigned, dated 8 August, 1914, and recorded in Boob 103, page 237, Wilson County registry, default having been made in tbe payment of tbe notes recited therein, tbe undersigned will, on Monday, 16 July, 1917, at 12 o’clock m., on tbe premises in tbe town of Stantonsburg, Wilson County, North Carolina, offer for sale at public auction, to tbe highest bidder, that certain lot or parcel of land lying and being situate in tbe *478 town of Stantonsburg, Wilson County, North Carolina, known as the “Garage Lot” and described as follows: (Describing fully the land by metes and bounds.) Terms of sale: Cash.’ And a like notice was published in the Daily Times on 22 June, 3 July, and 10 July, 1917, and on no other dates. The Daily Times is a newspaper published in Wilson daily except Sundays, and the Semi-Weekly Times, twice each, and is in reality a semi-weekly edition of the Daily Times.” The only question raised by the parties is: Whether the publication, on 15 June, 1917, in the Semi-Weelcly Times, a newspaper published in Wilson, of the notice of foreclosure, and the publication of a like notice in the Daily Times, a daily newspaper (except Sunday) published at Wilson, N. C., on 22 June, 3 July, and 10 July, 1917, and on no other dates, and the posting at the courthouse door and at three other public places in Wilson County, on 11 June, 1917, of a notice of sale, to be held on 16 July, 1917, was a sufficient compliance with the power of sale contained in the mortgage, requiring as a condition to the exercise of the power, “first advertising same for thirty days in some newspaper published in Wilson County, and by posting notice at some conspicuous place in said county and at the courthouse door for at least twenty days before the sale.” The Daily Times is a newspaper published in Wilson, daily, except Sunday, and the Semi-Weekly Times is a semiweekly edition of the Daily Times. The court below was of the opinion that publication of said notice in the Semi-Weekly Times and the Daily Times only on the dates of 15 June, 22 June, 3 July and 10 July, 1917, was not a sufficient compliance with the conditions of the exercise of the power of sale requiring “first advertising same for thirty days in some newspaper published in Wilson County,” and that the plaintiff is entitled to the relief demanded. We cannot so hold. The power of sale in the mortgage must be construed like any other contract. The property was sold on the premises to the highest bidder for cash. It was advertised by posting notices in conspicuous places in the county for 30 days before the sale and at the courthouse door for 30 days before the sale — the contract says at least 20 days before sale. The vice complained of is that it was not advertised each day successively for 30 days in some newspaper published in Wilson County. The language of the contract is conjunctive (1) first advertising same for 30 days in some newspaper published in Wilson County; (2) and 'first advertising same for 30 days by posting notice in some conspicuous place in said county; (3) and first advertising same at the courthouse door for at least 20 days before sale. It cannot be contended that first advertising same for thirty days by posting notices in some conspicuous place in the county means that each *479 successive day a notice must be posted, nor can it be contended that the posting each successive day is required at the courthouse door. We think the publication as made was a sufficient compliance with the terms of the mortgage. If the mortgagor desired he could have said in the contract each successive day for thirty days. This was not done. It also appears from the record that there is no newspaper published each successive day in Wilson County. Plaintiff’s construction of the power of sale contract would make it, so far as utilizing the power of sale contract, a nullity. This could not be the intent of the parties. The record shows that the sale took place on the premises on 18 July, 1917, and the present suit was not instituted until 20 December, 1921 — over four years after the sale. Under the facts and circumstances of this case, we do not think plaintiff can disaffirm the power of sale contract. Hogan v. Utter, 175 N. C., 332; Jenkins v. Griffin, ibid., 184. It was said in Carson v. Fleming, 188 N. C., p. 602: “The court instructed the jury that if the trustee posted the notices as required in the deed of trust, it would not be necessary for him to show that the notices remained posted continuously for the required period of time; that the fact that he had so posted the notices was sufficient in the absence of evidence that he knew that they had been destroyed and that proper notice had not been given of the sale.There is no evidence in this case that the trustee knew that any of the notices had been destroyed or torn down, if such were the fact. He had fully discharged his duty in causing the advertisements to be made as required by the defendants, in their deed of trust to him, and had a right to presume,on the day of sale, that the notices had remained posted.” Por the reasons given, there is Error.