Hofler v. Hill

WEBB, Judge. The petitioner’s first assignment of error is to the court’s receiving evidence of the repurchase agreement and considering it in reaching its decision. The petitioner, relying on In re Watts, 38 N.C. App. 90, 247 S.E. 2d 427 (1978), argues that the only matters that can be heard on a motion pursuant to G.S. 45-21.16(d) are whether there is (1) á valid debt of which the party seeking foreclosure is the holder, (2) default, (3) the right to foreclose under the instrument, and (4) whether notice has been given to those entitled to receive it. We believe the court properly considered evidence of the repurchase agreement. It was evidence as to two of the matters which are properly considered under Watts, that is whether there was a valid debt of which Allentown was the holder and whether the petitioner had the right to foreclose [204] under the deed of trust. The petitioner’s first assignment of error is overruled. We believe the petitioner’s second assignment of error has merit. The agreement between the parties as evidenced by several documents was that the bank would make a loan to R & H and take as security a secured interest in the personal property, deeds of .trust or the respondents’ real estate, guaranty agreements signed by the respondents and a repurchase agreement from Allentown. The repurchase agreement provided that if Allentown purchased from the bank the equipment for the amount then due on the note, the bank would assign its rights to Allentown. We know of no reason why this agreement should not be enforced. The respondents argue that the record shows and the court found that Allentown and the respondents were co-sureties and for this reason Allentown has no right of subrogation but is limited to contribution. We do not believe the fact that Allentown and the respondents may have been sureties for the payment of the note is determinative. In the cases cited by the respondents, Insurance Co. v. Gibbs, 260 N.C. 681, 133 S.E. 2d 669 (1963); Bunker v. Llewellyn, 221 N.C. 1, 18 S.E. 2d 717 (1942); and Liles v. Rogers, 113 N.C. 197, 18 S.E. 104 (1893), the court applied the principle that sureties are not entitled to subrogation against co-sureties. In none of these cases was there an agreement at the time the parties entered into the obligations that the party who paid a debt of the principal would have recourse against the other sureties. G.S. 26-5, upon which the respondents also rely, provides a surety who performs under a contract may maintain an action for contribution against other sureties. It does not say that parties may not by contract agree to different rights than are provided by the statute. See Commissioners v. Nichols, 131 N.C. 501, 42 S.E. 938 (1902), for a case which holds that a surety may contract for a different indemnity than he would be given by law in the absence of such an agreement. See also Bank v. Burch, 145 N.C. 317, 59 S.E. 71 (1907), for language to this effect. We hold that the parties are bound by the contract they entered and this contract gives Allentown the right to foreclose under the deed of trust. We reverse and remand for'further proceedings pursuant to this opinion. [205] Reversed and remanded. Judges CLARK and Whichard concur.