Leonard v. Pell

MARTIN (Harry C.), Judge. Although defendants assign as error the trial court’s refusal to dismiss the appeal, we choose to decide the case upon the merits. Judging from the record before us, it is evidently plaintiffs’ contention that an issue of fact exists with respect to tender of payment, and thus summary judgment was improperly granted. Plaintiffs do not allege that they, themselves, tendered payment of the obligation secured by the first deed of trust. The fact that they had declared bankruptcy reinforces this presumption. There is no evidence that James Mason was acting as agent for plaintiffs. The affidavits disclose that he was interested in purchasing the property for himself. Mason categorically denied tender of payment. The record does not support plaintiffs’ contention. Moreover, the record discloses that on 25 June 1980, one day before plaintiffs instituted this action, a check in the amount of $3,474.74 was paid to the order of Jerry R. Leonard, Doris M. Leonard and Anita Jo Kinlaw, Standing Trustee, Wage Earner Plan, B-79-01169 and B-79-01170. Plaintiffs endorsed this check, representing the surplus from the foreclosure sale, and the moneys were applied to other of plaintiffs’ debts. It has been held that acceptance of a surplus derived from a foreclosure sale waives the right of the mortgagor to attack the foreclosure. Flake v. Building and Loan Association, 204 N.C. 650, [408] 169 S.E. 223 (1933); 55 Am. Jur. 2d Mortgages § 665 (1971). By endorsing the check and reaping the benefits of the surplus toward the satisfaction of other debts, plaintiffs elected to ratify the sale. They may not now treat the sale as a nullity and have it set aside, or sue the trustee for wrongfully conducting the sale. Flake, supra. We hold that the trial court was correct in finding no triable issue of fact. Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc., 301 N.C. 200, 271 S.E. 2d 54 (1980). Affirmed. Judges MARTIN (Robert M.) and WHICHARD concur.