Lawrence v. . Beck

HoKE, J. In C. S., 2591, provision is made for increase of bids and resale of property where there has been a foreclosure under a power of sale contained in a mortgage, deed of trust, etc., and in case of sales by executors, administrators, or others under a power conferred by a will. In the case of In re Sermon’s Land, 182 N. C., 122, the Court, in referring to the statute, held that the powers of supervision and control conferred upon the clerks of the Superior Court did not arise in such cases unless and until there had been the advanced bid specified in the statute paid into the hands of said clerk. In the present case it appears that the advance bid was duly made, the amount paid to the clerk, and a resale ordered. On these facts the statute confers upon the clerk a *199 certain measure of supervision and control over tbe matter, and clearly contemplates and provides that where this right of supervision has attached, and a resale has been ordered, it is required to a complete and regular foreclosure that a report of such resale shall be made to the clerk, the question shall again remain Open for another ten days for further increased bids, and on a final sale, the clerk shall enter an order that the mortgagee, trustee, or other shall make title to the purchaser. This sufficiently appears from the various provisions of the section as follows: “That the clerk shall not only be paid the amount of the increased bid, but if there is any doubt of the solvency and promptness of the bidder, a bond may be required in security of the bid.” “Resales may be had as often as the bid may be raised in compliance with the. section.” “Upon the final sale, the clerk shall have power to order that title be made to the purchaser, he may make such orders as may be just and necessary to safeguard the rights of the parties, and he shall keep a-record which will show in detail the amount of each bid, the purchase price, and the final settlement, etc., etc.” And the recent case of Pringle v. Loan Assn., 182 N. C., 316, gives decided intimation that this is the proper interpretation and effect of the statutory provision. We think, therefore, his Honor correctly ruled that for want of a report to the clerk of the last sale, and an order by that officer to the trustee to make title, there has not been a regular and completed foreclosure,, and these facts having been found by the jury, the first issue was properly answered against the plaintiff. There is doubt, however, of the correctness of the second ruling of his Honor that in case the first issue should be answered “No,” they should also answer the second issue “No.” From a perusal of the statute and the decisions apposite, In re Sermons, supra, and Pringle v. Loan Assn., supra, it will appear’ that even after the right of supervision has arisen to the clerk by virtue of an increased bid, that officer’s powers in the-premises are not those of general control, as in case of an ordinary judicial sale. As said in Sermon’s case, supra, the stipulations of the mortgage, etc., and the contract rights of the parties, are not to be interfered with except and to the extent that the statute expressly provides. The clerk’s powers are only to see-that on an increased bid, and as often as they are made, a resale shall be had, and on final sale a deed shall be made to the purchaser, and he may make such orders as may be just and necessary to that end, and where it appears, as in this case, that there was no further increase of the bid, and without orders of the clerk the parties have of their own motion proceeded to do the only thing the clerk could have ordered, as now advised, we see no reason why, so far as the second issue is concerned, this merely ministerial duty of the clerk *200 should not have been presently performed and supplied by action nunc pro tunc, and the plaintiff allowed a verdict on the issue as on a perfected claim. On the record, we find it unnecessary to make definite decision on this question, for the verdict on the second issue is not found as a distinct and substantive fact, but only as a conclusion of law from his Honor’s ruling and the finding of the jury on the first issue, and, regardless of the verdict on these two first issues, we are of opinion that the verdict on the third and fourth issues establishes facts which permit and require that the court make final disposition 'of the rights of the parties involved in the controversy. In this jurisdiction, and others basing their system of jurisprudence on common-law principles, a judgment is but the conclusion that the law makes upon the facts admitted or authoritatively established in the course of a properly constituted suit, and where in such a proceedings the ultimate facts have been so ascertained and declared, the correct judgment must follow and be entered thereon as of right. Beard v. Hall, 79 N. C., 506; Barnard v. Etheridge, 15 N. C., 295; 23 Cyc., p. 665. In Beard’s case, supra, the principle adverted to is stated as follows: “A judgment is the legal conclusion upon facts found or admitted by the parties in the course of the action to which the party is entitled as a matter of course as soon as the facts are so established. This is the rule of the common law, and we have found no statute enacting otherwise,” citing 2 Tidd’s Practice, p. 932; 2d Daniels’ Chancery, par. 1017; Davies v. Davies, 9 Vesey, p. 46; Campbell v. Mesier, 4 Johnston, p. 341. Referring to the pertinent issues in view of these principles, and interpreting the same in reference to the pleadings, the evidence and the charge of the court, the appropriate and approved method with us, Reynolds v. Express Co., 172 N. C., 487, the finding on the fourth issue determines that on or not long after 1 March, 1921, the parties mutually agreed to cancel the trade, plaintiff to surrender the remainder of the unpaid notes to the amount of $5,100, and all interest thereon, the property was to be returned to plaintiff, and possession surrendered, defendant thus losing the amount paid and all of the improvements. And further, that the foreclosure was merely in assurance of the title to plaintiff by shutting off any and all right of redemption in defendants or their successors in interest. True, the exact time of the surrender of possession is not fixed by the verdict, but the evidence of the defendant is to the effect that the cancellation was to go into effect not long after 1 March, 1921, and the evidence of plaintiff fixes the time for surrender of possession to plaintiff on 1 September, 1921. There is practically no substantial conflict between the parties on the issue of cancellation, the evidence showing that after *201 they bad entered on performance, tbe surrender of possession was interrupted by some nonessential occurrence, indicating tbat tbe parties, one or botb of tbem, were in a sensitive mood and easy to take offense, but nothing occurred to justify a destruction or modification of tbe agreement to cancel. Under the authorities, and in the absence of fraud and imposition, there was no reason why the parties could not make such an agreement. Jones v. Pullen, 115 N. C., 465; McLeod v. Bullard, 86 N. C., 210. And the jury having further found in response to the third issue tbat the fair rental of the land is $30 per’ month, and it further appearing tbat plaintiff is in present possession and control of the notes, we are of opinion tbat it is the conclusion of the law on the facts presented and established tbat plaintiff surrender for cancellation the remaining purchase-money notes and all interest thereon; tbat the right of redemption and any and all interest in the land in defendants or their successors be forever barred and foreclosed; tbat plaintiff is entitled to present possession of the property and writ issue to tbat end; tbat plaintiff have and recover of defendant and the sureties in any bond be may- have given for the purpose the damages for adverse and wrongful occupation at the rate of $30 per month from 1 September, 1921, till possession be delivered to plaintiff. Tbat the cost be taxed and adjudged the one-balf against plaintiff and one-balf against defendant, and tbat judgment be entered accordingly. This will be certified tbat tbe judgment heretofore rendered be set aside and a new judgment entered in accord with this opinion. Reversed.