DeBruhl v. L. Harvey & Son Co.

Bobbitt, J. Where, upon waiver of jury trial in accordance wiith G.S. 1-184, the court malees no specific findings of fact but enters judgment of involuntary nonsuit, the only question presented is whether the evidence, taken in the light most favorable to plaintiff, would support findings of fact upon which plaintiff could recover. Shearin v. Lloyd, 246 N.C. 363, 98 S.E. 2d 508, and cases cited. Certain of the documents included in the record evidence were offered by defendants and ‘admitted over plaintiffs’ objections. However, assignments of error 'based on exception to the admission thereof are deemed abandoned under Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 562. These exceptions are not set out in plaintiffs’ brief and no reason or argument is stated and no authority -is cited in support thereof. While plaintiffs’ allegations refer to the purported foreclosure by C. Oettinger, Trustee, and in general terms declare it void, they do not attack in any particular the regularity thereof. They do allege that Leo H. Harvey purchased the 227.2-acre tract as agent for L. Harvey & Son Company. As to this, Leo H. Harvey testified: “I purchased it for L. Harvey & Son Company. The Trustee’s Deed was made to me.” An example of his further testimony, relative to the rental of the farm until ‘the sale and conveyance in 1945 to the Hills, is the following: “That year (1924) we rented the farm to Mr. J. B. Huggins, . . .” (Our italics) “It is well settled in this jurisdiction that the cestui que trust has the right to buy at the trust sale unless fraud or collusion is -alleged or proved.” Hare v. Weil, 213 N.C. 484, 487, 196 S.E. 869, and cases cited; Graham v. Graham, 229 N.C. 565, 50 S.E. 2d 294. Here there is neither allegation nor evidence of fraud or collusion. L. Harvey k Son Company had a legal right to purchase -at the foreclosure sale. - When it appeal's .that the trustee’s deed (1) is regular upon its face, (2) was duly executed, and (3) contains recitals which show compliance with the -statute regulating the foreclosure of >a deed of trust, the .burden of proof rests upon him who asserts irregularity in the foreclosure. Jones v. Percy, 237 N.C. 239, 74 S.E. 2d 700, and eases cited. One fact is clearly established, namely, -that nothing was realized from the foreclosure by C. Oettinger, Trustee., for application on the DeBruhl indebtedness of $6,136.80, plus interest, to L. Harvey & S-on [168] Company. Indeed, the DeBruhls, in the lease and assignment of lease of February 26, 1926, set forth that their indebtedness in that amount was then outstanding and unpaid. In this connection, it is noted that these documents, and the similar documents of January 1, 1931, relate solely to the “life estate tract.” They contain no reference whatever to the 227.2-acre tract. It is quite clear that the DeBruhls and L. Harvey & Son Company on February 6, 1926, and again on January 1, 1931, acted upon the assumption that the deed of trust to C. Oettinger, Trastee, continued as a lien on the “life estate tract” notwithstanding the 1923 foreclosure sale of the 227.2-acre tract. Layden v. Layden, 228 N.C. 5, 44 S.E. 2d 340, decided in 1947, has no legal hearing on the 'status of the 227.2-aere tract that was sold under foreclosure in 1923. It would be relevant only if C. Oettinger, Trustee, bad 'attempted to sell the “life estate •tract” in an attempted second foreclosure. Conceding, for present purposes, that L. Harvey & Son Company was the purchaser at said foreclosure sale, and that Leo H. Harvey, from May 4,1923, until his conveyance of June 10, 1926, to L. Harvey & Son Company, held legal title solely as trustee, L. Harvey & Son Company became the owner of said 227.2-acre tract in 1923 free and clear of any right, title or interest of the DeBruhls. In this connection, it is noted that plaintiffs do not allege that L. Harvey & Son Company or Leo H. Harvey purchased .at .said foreclosure sale under any agreement to hold title to. the 227.2-acre tract in trust for plaintiffs. Plaintiffs allege (defendants deny) that “prior to February 6, 1926,” J. A. DeBruhl was informed by C. F. Harvey, Sr., that “there had been an attempted foreclosure” of the deed of trust to C. Oettinger, Trustee, but that plaintiffs “should ignore and pay no attention to the. purported foreclosure sale.” The gravamen of .plaintiffs’ cause of -action is the alleged agreement between J. A. DeBruhl and C. F. Harvey, Sr., acting for L. Harvey & Son Company, made as part of the transaction in which the lease and assignment of lease of February 6, 1926, relating to the “life estate tract,” were executed. While there is no evidence that C. F. Harvey, Sr., was president of L. Harvey & Son Company, the Harvey defendants admit, indeed allege, that prior to his death on February 11, 1931, C. F. Harvey, Sr., acted for L. Harvey & Son Company in all conferences and dealings with the DeBruhls. The alleged agreement, if made, was made in this factual .setting: L. Harvey & Son Company owned the 227.2-iaore tract. The DeBruhls owed $6,136.80, plus interest. The parties understood that the deed of [169] trust to C. Oettinger, Trustee, was a lien on Delia DeBruhl’s life estate in the “life estate tract.” It is noted that plaintiffs allege that they “cultivated the 227.2-acre tract of land continuously from and after February 6, 1926, and until the beginning of the calendar year 1946.” The Harvey defendants allege that they had been in continuous adverse possession since May 4, 1923, and that such possession as plaintiffs had from time to time was as tenants of defendants and in full recognition of their title. Disregarding unsupported allegations, there is no evidence that J. A. DeBruhl had any possession of the 227.2-acre tract from May 4, 1923, until 1938. (Note: Leo H. Harvey’s testimony that the 227.2-acre tract had been rented to J. A. DeBruhl in 1932 for $150.00 was, upon plaintiffs’ motion, stricken.) G.S. 1-42, in pertinent part, provides: “In every action for the recovery or possession of real property, or damages for a trespass on such possession, the person establishing a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person is deemed to have been under, and in subordination to, the legal title, unless it appears that the premises have been held and possessed adversely to the legal title for the time prescribed by law before the commencement of the action.” For present purposes, we disregard defendants’ evidence as to their possession. Plaintiffs’ evidence consists of the testimony of three witnesses. Williams and Chapman testified that they lived on the Hill farm in 1938 and 3943, respectively, and that they rented for these years from J. A. DeBruhl and paid the rent to him. Ethel Blizzard testified that in 1944 she and her husband (now deceased) lived in the house now occupied by the Hills; and that her husband rented the place for that year from J. A. DeBruhl. We need not appraise the testimony of these three witnesses as to its bearing upon defendants’ affirmative pleas of adverse possession under visible lines and boundaries and under color of title. Suffice to say, plaintiffs offered no evidence to show that they made any payments to L. Harvey & Son Company “in the nature of rent for the 227.2-acre tract of land” or other income therefrom. The Harvey defendants admit, indeed allege, that on December 31, 1936, L. Harvey & Son Company, by Leo H. Harvey, President, marked each of the notes “Paid” and delivered them to the DeBruhls. (Note: They allege that this was done when the DeBruhls had paid $2,500.00, not $6,136.80, plus interest.) The fact that the owner and holder of the notes aggregating $6,136.80 entered “Paid” thereon and [170] surrendered 'them to the makers is evidence, nothing else appearing, that the makers hadi made payment in full. Even so, the entries made in 1936 on the notes aggregating $6,136.80' and on the margin of the record of .the deed of trust to C. Oettinger, Trustee, could not and did not impair the validity of the foreclosure sale of the 227.2-acre tract in 1923. Plaintiffs allege -that, after’ the DeBruhls made full payment, they called upon L. Harvey & Son Company “to revest them with the title to the said lands in accordance with the agreement, which demands the defendant L. Harvey & Son Company, Inc., declined to comply with, and continued thereafter to collect rents from the said lands and retain the same.” Considered in the light most favorable to plaintiffs’ their case comes to this: L. Harvey & Son Company, on or about February 6, 1926, agreed that, upon payment by the DeBruhls of their indebtedness of $6,136.80, plus interest, it would convey to J. A. DeBruhl the said 227.2-acre tract; and that, notwithstanding the payment in full by the DeBruhls of their said indebtedness, L Harvey & Son Company refused to convey this land to J. A. DeBruhl. A plaintiff must make out his case secundum, allegata. There can be no recovery except on the case made by his pleadings. Andrews v. Bruton, 242 N.C. 93, 95, 86 S.E. 2d 786, and cases cited; Mesimore v. Palmer, 245 N.C. 488, 96 S.E. 2d 356. The fatal defect in plaintiffs’ case is that they have offered no evidence that L. Harvey & Son Company, by C. F. Harvey, Sr., or otherwise, entered into the alleged agreement. Flence, we need not explore what plaintiffs' remedy would be if such alleged .agreement had been made, orally or in writing, or what statute of limitation would be applicable in such case to such remedy. If, in fact, the DeBruhls paid the $6,136.80, plus interest, in full, they paid no more than the amount of their admitted indebtedness to L. Harvey & Son Company. Nothing else appearing, a debtor, upon payment of an honest debt, acquires no right to any of his creditor’s property. Since only the correctness of filie judgment of involuntary nonsuit is presented, we have considered only the portions of defendants’ evidence favorable to .plaintiffs. For the reasons stated, the court properly entered judgment of involuntary nonsuit as to L. Harvey & Son Company. Since the other defendants derive title from L. Harvey & Son Company, the court properly entered judgment of nonsuit as to them. Hence, it is un [171] necessary 'to consider defenses that may be available to them in addition to those available to L. Harvey & Son Company. Affirmed.