Whitehead v. . Hellen
Supreme Court of North Carolina
Mortgage — Power of Sale — Purchase by Mortgagee. Civil Action for the recovery of land, tried at Fall Term, 1876, of Pitt Superior Court, before Moore, J. The defendant executed a mortgage deed to J. W. May, conveying the laud in controversy. May assigned the note secured by the mortgage to the plaintiff, Whitehead. The plaintiff sold the land under a power contained in the deed and •without a decree of foreclosure, and one Bernard bought as •the agent of plaintiff.
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Mortgage — Power of Sale — Purchase by Mortgagee. Civil Action for the recovery of land, tried at Fall Term, 1876, of Pitt Superior Court, before Moore, J. The defendant executed a mortgage deed to J. W. May, conveying the laud in controversy. May assigned the note secured by the mortgage to the plaintiff, Whitehead. The plaintiff sold the land under a power contained in the deed and •without a decree of foreclosure, and one Bernard bought as •the agent of plaintiff. The plaintiff executed a deed to Bernard and Bernard reconveyed to plaintiff. The defendant insisted that the sale was void and…
1Opinion of the CourtPeaRSOn, C. J.
If the action had been by the mortgagee against the mortgagor, simply to get possession of the land, the defendant could not have resisted a recovery.
But the action is by an alleged purchaser claiming an absolute estate, under a sale made by the mortgagee by virtue of a power of sale conferred in the mortgage deed. The pleadings present the important question: Can an equity of' redemption be foreclosed in this shorthand way ? In other words, can the mortgagee, under a power of sale, buy the land of himself?
To make a valid sale there must be two parties, a vendor and a vendee; a man cannot…
2Cited by24 opinions
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- Jones v. . WilliamsSupreme Court of North Carolina · 1911
- Mills v. . Building Loan Assn.Supreme Court of North Carolina · 1940
- Warren v. . SusmanSupreme Court of North Carolina · 1915
- McLeod v. . BullardSupreme Court of North Carolina · 1882
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