Gambill v. Bare

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232 S.E.2d 870 (1977)

32 N.C. App. 597

Sidney B. GAMBILL and wife, Myrtle R. Gambill v. W. F. BARE and wife, Edith Lee Bare.

No. 7623DC771.

Court of Appeals of North Carolina.

March 16, 1977.

Bryan & Kilby, by John T. Kilby, Jefferson, for plaintiff appellees.

Vannoy & Reeves, by Wade E. Vannoy, Jr., West Jefferson, for defendant appellants.

ARNOLD, Judge.

Defendants argue that G.S. 45-21.38, by implication, will not allow a mortgagee to sue his mortgagor on the underlying debt or note for purchase money for real property, and that the mortgagee can only foreclose on the deed of trust. The statute provides:

"In all sales of real property by mortgagees and/or trustees under powers of sale contained in any mortgage or deed of trust executed after February 6, 1933,. . ., to secure to the seller the payment of the balance of the purchase price of real property, the mortgagee or trustee or holder of the notes secured by such mortgage or deed of trust shall not be entitled to a deficiency judgment on account of such mortgage, deed of trust or obligation secured by the same: Provided, said evidence of indebtedness shows upon the face that it is for the balance of purchase money for real estate. . . ." (Emphasis added.)

A strict reading of G.S. 45-21.38 reveals that this statute does not apply unless the "evidence of indebtedness", i. e., the note and deed of trust, shows on its face that the debt is for the purchase money for real property. Nowhere on this note or deed of trust is it indicated that the indebtedness "is for the balance of purchase money for real estate. . . ." Therefore, G.S. 45-21.38 does not apply, even by implication.

*871 No genuine issue of material fact exists. The granting of summary judgment to plaintiff is


BROCK, C. J., and PARKER, J., concur.