Layden v. . Layden

Denny, J. Tbe plaintiffs and tbe defendants are claiming title from a common source. Tbe plaintiffs having introduced evidence tending to show title in themselves, and having offered evidence tending to show that tbe purported deed to tbe locus in quo, held by tbe defendants, is void, they were entitled to go to tbe jury on tbe issues raised by tbe pleadings. Hence, tbe judgment as of nonsuit was erroneously entered. Tbe defendants’ sole claim of title to tbe lands involved herein is based on tbe following grounds: (1) R. T. Layden was in possession of tbe premises for more than ten years prior to tbe institution of this action as mortgagee, and that such possession is a bar to plaintiffs’ action 'under tbe provisions of G. S., 1-47 (4) ; and (2) That-these defendants and R. T. Layden, under whom they claim, have been in possession of these lands since tbe foreclosure sale in 1928; and that such possession has been adverse and under color of title for more than seven years prior to tbe institution .of this action. G. S., 1-38. Tbe appellees concede in their brief that prior to tbe enactment of Section 1, Chap. 16, of 1943 Session Laws, now a part of G. S., 45-26, unless a mortgagee was in possession, tbe foreclosure sale and tbe execution and delivery of tbe deed pursuant thereto, in order to be valid, must have been completed within ten years from tbe date tbe debt matured. Spain v. Hines, 214 N. C., 432, 200 S. E., 25. However, tbe appellees contend that tbe mortgagor and those who claim under him, were not in. possession for more than ten years prior to tbe institution of this action, *8 and that the case of Ownbey v. Parkway Properties, Inc., 222 N. C., 54, 21 S. E. (2d), 900, is controlling. We do not tbink either case is controlling on this record. In the deed of trust executed by Charles T. Layden to W. F. C. Edwards, Trustee, to secure the indebtedness of $3,000.00, to R. T. Layden, there is no provision contained therein which authorized the Trustee to conduct more than one foreclosure sale thereunder. And when, on 15 May, 1926, the foreclosure sale was conducted pursuant to the power contained in the deed of trust, and a deed executed to the purchaser pursuant to such sale, the power of sale was executed and was thereafter functus officio. The law does not recognize partial foreclosure. Wiltsie on Mortgage Foreclosure (5th Ed.),.Section 832, p. 1349. “The mortgage presents the phenomenon of only one debt, with only one pledge to secure it. The debt may be split into bonds, or it may be payable in a series of notes, but in a broad sense it remains true that there is one debt, which arose out of one transaction. In like manner, there is only one pledge, although there may be many parcels of land, and many types of security. It follows that a foreclosure must be of the entire security; and, no matter how many parcels of land there may be, all should be included in the suit. To do otherwise is to 'split an entire case,’ and that fault is penalized, in our jurisprudence, by refusal to hear the deferred portion in a later suit. It follows that a foreclosure upon one of two parcels will preclude a later foreclosure upon the other. The only exception is where the land lies in different States.” Glenn on Mortgages, Sec. 88, p. 533. We see no reason why the same principle of law should not apply to foreclosure under a power of sale. As to foreclosure of land lying in two or more counties in this jurisdiction, see G. S., 45-27. In the case of Bank of America Natl. Ass’n v. Dames, 239 N. Y. S., 558, 135 Misc. Rep., 391, the Court said: “A continuing lien against any part of the mortgaged premises after a sale is had is not known nor can it be recognized by our Courts.” It is the general rule that there can be only one foreclosure of a mortgage or deed of trust. Irons v. American Natl. Bank, 178 Ga., 160, 172 S. E., 629; Strickland v. Lowry Natl. Bank, 140 Ga., 653, 79 S. E., 539. “The rule is that a mortgagee may not foreclose his mortgage by piecemeal.” 87 Mont., 198, 286 P., 402, citing Marcarel v. Raffour, 51 Cal., 242; Tacoma, etc., Co. v. Safety Ins. Co., 123 Wash., 481, 212 P., 726; Hall v. Arnott, 80 Cal., 348, 22 P., 200; Commercial Bank v. Kershner, 120 Cal., 495, 52 P., 848. It often occurs that a mortgagee elects to sell only so much of the security pledged as may be necessary to satisfy his debt, even though he is not so restricted by the mortgage or deed of trust. Such an election releases the remainder of the pledged property from the lien of the foreclosed instrument. And where a party elects to sell only a part of the *9 security, pursuant to tbe power of sale contained in bis mortgage or deed of trust, be cannot thereafter assert any right under such power, even though the secured debt may not have been satisfied in full. Applying the above principle of law to the facts in this case, we hold that E. T. Layden was not and could not have been a mortgagee in possession after the execution and delivery of the deed, made pursuant to the foreclosure sale held on 15 May, 1926. The relation of mortgagor and mortgagee was terminated upon the consummation of that sale. Hence, the purported sale on 7 April, 1928, was a nullity. Likewise the claim of title by adverse possession under color of title for seven years prior to the institution of this action, cannot be sustained. The deed from W. F. C. Edwards, Trustee, to R. T. Layden was not executed until 1 February, 1943, and this action was instituted 12 September, 1946. G. S., 1-38; Berry v. Coppersmith, 212 N. C., 50, 193 S. E., 3. The judgment of the court below is Eeversed.