In Re Register

167 S.E.2d 802 (1969)

5 N.C. App. 29

In the Matter of Foreclosure of Ray Gustava REGISTER and Elizabeth B. Register Property Under Deed of Trust (2143-423).

No. 6926SC84.

Court of Appeals of North Carolina.

June 18, 1969.

*805 Henderson, Henderson & Shuford, by William A. Shuford, Charlotte, for petitioner appellants.

Osborne & Griffin by Wallace S. Osborne, Charlotte, for respondent appellees.

MORRIS, Judge.

Appellants contend that error was committed in the trial tribunal's refusal to sign and enter the order tendered by them; in making the conclusions of law in the order entered 11 July 1968 (the Thornburg order) and in the signing and entry of said order; and in making the conclusions of law in the order entered 12 September 1968 (the Ervin order) and in signing and entry of said order.

No exception to the refusal of Judge Thornburg to adopt, sign and enter the judgment tendered by appellants appears in the record except under the listing of assignments of error. The Supreme Court has held repeatedly that exceptions appearing for the first time in the assignments of error will not be considered. Dilday v. Beaufort County Board of Education, 267 N.C. 438, 148 S.E.2d 513, 149 S.E.2d 345.

The record discloses that on 6 June 1968, the last day for an upset bid, Register verified a complaint alleging the sale and resales of the property by the trustee after advertisement; that 6 June 1968 is the last day for filing an upset bid; that no upset bid had been filed to the time of drafting the complaint; that "on June 7, 1968 the Trustee will be able to apply to the Clerk of Court for Mecklenburg County, North Carolina, for confirmation of the sale based on said bid of $9,832.07"; that the bid is inadequate and "will result in irreparable damage to the Plaintiffs"; that the value of the property is more than $22,500; that a dispute exists as to the amount due, the defendants demanding $8400 and plaintiffs claiming they owe only $5,000; that an accounting should be required; that plaintiffs have no adequate remedy at law, or otherwise, and irreparable damage will result to plaintiffs unless the sale is restrained. They asked the court to treat the complaint as an affidavit and to issue a restraining *806 order and to require an accounting and allow plaintiffs to pay such amount to bring their loan current. The complaint, apparently drafted under the provisions of G.S. 45-21.34, was not filed as a complaint, but on 7 June 1968 it was attached to Register's motion directed to the clerk and asked to be taken as an affidavit in support of the motion that the clerk not confirm the sale but have a hearing "for the purpose of considering other evidence as to the value of said property and to order a resale of said property."

Neither the complaint nor the motion alleges any irregularity in the foreclosure proceedings. Appellants rely solely on inadequacy of purchase price. True, the complaint, which is asked to be treated as an affidavit in support of the motion, alleges a dispute as to the amount due. That question had, however, been resolved by the 28 February 1968 order of Judge Clarkson and the order of 25 April 1968 of Judge Ervin. We note that nowhere in the record before us is there any indication of any tender by Register of any amount in payment from the beginning of the foreclosure in August 1967 to the date of appeal in September 1968.

From the procedural quagmire of this case, one question arises: Is inadequacy of purchase price, even if proved, sufficient, standing alone, to upset a sale duly and regularly made in strict conformity with the power of sale contained in the deed of trust? If this question is answered in the negative, then the conclusions of law of Judge Thornburg to which appellants except are correct. We think the question must be answered in the negative.

Appellants point to G.S. § 45-21.29Resale of real property; jurisdiction; procedure; writs of assistance and possessionand particularly subsections (h) and (j) thereof which provide: "(h) When a resale of real property is had pursuant to an upset bid, such sale may not be consummated until it is confirmed by the clerk of the superior court * * *" and "(j) The clerk of the superior court shall make all such orders as may be just and necessary to safeguard the interests of all parties, and shall have the authority to fix and determine all necessary procedural details with respect to resales in all instances in which this article fails to make definite provision as to such procedure."

In In Re Sale of Land of Sharpe, 230 N.C. 412, 53 S.E.2d 302, the trustee in a deed of trust had conducted seven sales. The trustor, by an agent, had filed an upset bid each time. The noteholder and trustee brought a proceedings before the clerk alleging that the trustor had used the statute providing for resales as a means of delaying the proper foreclosure of a valid deed of trust. The clerk entered an order finding this as a fact and directing that the high bidder at any subsequent sale and any person filing an upset bid would be required to deposit with the clerk cash or certified check in the amount of 15% of the last and highest bid. Trustor appealed to the superior court. There, after notice, noteholder and trustee moved to dismiss the appeal as frivolous. The superior court affirmed the clerk's order in all respects and dismissed the appeal. Trustor appealed. The Supreme Court reversed, holding that the order of the clerk was void for that it undertook to deprive trustor of rights granted by the legislature in the statute providing for resales and prescribing the amount to be deposited with the clerk. Justice Ervin, for the Court, said:

"The order of the Clerk of the Superior Court of Moore County finds no warrant in the statutory provision that `the clerk shall make all such orders as may be just and necessary to safeguard the interest of all parties.' This authorization extends to orders securing the rights of the parties as defined by the statute, but not to orders abrogating or abridging such rights." (Emphasis supplied.)

We are of the opinion that the case before us is governed by the well-established *807 legal principles stated by Barnhill, J. (later C. J.), in Foust v. Gate City Savings & Loan Association, 233 N.C. 35, 37, 62 S.E.2d 521, 22 A.L.R.2d 975. Justice Barnhill noted that the statutory provisions are, by operation of law, incorporated in all mortgages and deeds of trusts and control any sale under such instruments. The jurisdiction of the clerk vests at the moment an upset bid is filed with him. In the case then before the Court a resale had been had after an upset bid. The trustee had erroneously reported the bid at the resale as $6400 rather than the actual bid of $825. The clerk's decree of confirmation recited a last and highest bid of $825 and ordered conveyance. The Court held that this irregularity was of such substantial nature as to require the court to vacate the order of confirmation. In reaching this result, Justice Barnhill said:

"Mere inadequacy of the purchase price realized at a foreclosure sale, standing alone, is not sufficient to upset a sale, duly and regularly made in strict conformity with the power of sale. Weir v. Weir, 196 N.C. 268, 145 S.E. 281; Roberson v. Matthews, 200 N.C. 241, 156 S.E. 496; Hill v. [Albemarle] Fertilizer Co., 210 N.C. 417, 187 S.E. 577.

Even so, where there is an irregularity in the sale, gross inadequacy of purchase price may be considered on the question of the materiality of the irregularity. Hill v. [Albemarle] Fertilizer Co., supra, and cases cited.

Speaking to the subject in Weir v. Weir, supra, Stacy, C. J., says: `But gross inadequacy of consideration, when coupled with any other inequitable element, even though neither, standing alone, may be sufficient for the purpose, will induce a court of equity to interpose and do justice between the parties. Worthy v. Caddell, 76 N.C. 82; 70 A. & E. (2 Ed.) 1003; note: 42 L.R.A. (N.S.) 1198'; Bundy v. Sutton, 209 N.C. 571, 183 S.E. 725; Roberson v. Matthews, supra."

These principles were quoted with approval in certain Teed Products Corp. v. Sanders, 264 N.C. 234, 141 S.E.2d 329 and, we think, are controlling here.

There is no allegation of irregularity in the foreclosure proceedings and no dispute as to the validity of the deed of trust. The only question before the clerk was the alleged inadequacy of purchase price. We hold that the conclusions of law contained in Judge Thornburg's order of 11 July 1968 were correct.

Appellants did not perfect their appeal from this order, and the appeal was subsequently, on motion of appellees, dismissed. Thereafter, the clerk, on motion of appellees, entered an order confirming the sale. From this order, appellants appealed, and from the order of Judge Ervin dismissing that appeal as being without merit, appealed to this Court.

We think Judge Ervin correctly concluded that the order of Judge Thornburg of 11 July 1968 is the law in the case and "binding upon this Court and that, in effect, this matter is before this Court on a purported appeal from said Order of Judge Thornburg entered on July 11, 1968, and that this appeal is therefore without merit." No appeal lies from one superior court to another. Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497. Indeed, even though a judgment regularly entered is concededly based upon an erroneous application of legal principles, upon expiration of the term at which rendered, it can only be corrected by an appellate court; for "after the term neither the judge who rendered the judgment nor another judge holding the court can set it aside for such error, and the only remedy is an appeal or a certiorari as a substitute for an appeal." Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409. As pointed out above, however, the order of Judge Thornburg in the instant case was not based upon an erroneous application of legal principles.

Affirmed.

CAMPBELL and BROCK, JJ., concur.