Lunsford v. . Speaks
Supreme Court of North Carolina
Civil aotioN to recover land, tried before Mclver, J., and a jury, at Fall Term, 1892, of Wilkes Superior Court. Plaintiff claimed title and possession under a deed executed to him as purchaser of the land at a sale made under the power in the mortgage given by defendant. The defendant, after formally answering the ordinary allegations of the complaint, for a further defence alleged: “ 1. That on the 21st day of July, 1890, he executed a mortgage to L. tí.
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Civil aotioN to recover land, tried before Mclver, J., and a jury, at Fall Term, 1892, of Wilkes Superior Court. Plaintiff claimed title and possession under a deed executed to him as purchaser of the land at a sale made under the power in the mortgage given by defendant. The defendant, after formally answering the ordinary allegations of the complaint, for a further defence alleged: “ 1. That on the 21st day of July, 1890, he executed a mortgage to L. tí. Benbow on the land in controversy, to secure the payment of the sum of twenty-five dollars, which mortgage contained a power of sale,…
1Opinion of the Court
MacjRak, J.:
The principal question presented is whether in this case the burden is upon the plaintiff to show that the power of sale had been duly executed.
Upon examination we find no express authority on the subject in this State, and the authorities are conflicting elsewhere. All agree that the essential requisites of the power must be strictly complied with (2 Perry on Trusts, sec. 602, p. —), and that Courts will strictly scrutinize sales under powers in deeds of mortgage.
It is said in the first edition of Jones on Mortgages (1878), at section 1830, upon the question of burden of proof as…
2Cases cited3 opinions
- Olcott v. BynumSupreme Court of the United States · 1873
- Wood v. LakeSupreme Court of Alabama · 1878
- Sav. & Loan Soc'y v. DeeringCalifornia Supreme Court · 1885
3Cited by14 opinions
- McCaughn v. YoungMississippi Supreme Court · 1904
- Cleveland v. BatemanNew Mexico Supreme Court · 1915
- Jenkins v. . GriffinSupreme Court of North Carolina · 1918
- Roe v. DavisCourt of Appeals of Texas · 1911
- Norwood v. Lassiter.Supreme Court of North Carolina · 1903
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