Opinion
(Filed 18 October, 1904.)
MORTGAGES — Foreclosure — Trusts — Executors and Administrators — The Code, sec. 1276 — Laws 1901, ch. 186.
The executor of a trustee in a deed of trust has no power to sell the property conveyed therein, in the absence of a request so to do by one of the cestuis que trust.
ACTION by F. P. Eason and others against I. F. Dortch and others, heard by Judge M. H. Justice, at February Term, 1904, of GREENE. From a judgment for the defendant the plaintiff Eason appealed.
L. V. Morrill and G. M. Lindsay, for the plaintiff.
L. I. Moore, for the defendant.
This is an action for an injunction to prevent a sale of the land of the plaintiffs, which would cast a cloud upon their title. Omitting details unnecessary to the point upon which we place our decision, a deed in trust had been executed upon said land with a power of sale, W. T. Dortch being named as the trustee. Subsequent to the death of the trustee, his executor, the defendant Isaac F. Dortch, has advertised the land for sale by virtue of said power of sale in said deed of trust. In an affidavit filed in this cause by said Dortch he admits that he has not been requested, in writing or otherwise, by any of the cestuis que trustent in said deed to advertise the land for sale and has not had any correspondence or communication for years with either of them. Thereupon the injunction was continued to the hearing, and upon appeal that order was affirmed by a per curiam. Eason v. Dortch, 134 N.C. 753. At the hearing it does not appear that there was any additional evidence to the admissions in the pleadings and affidavits previously filed, but the Judge (292) sustained a demurrer to the evidence and rendered judgment as of nonsuit against the plaintiffs. Prior to chapter 186, Laws 1901, amending section 1276 of The Code, the personal representative of a deceased trustee in a deed of trust to secure a debt had no power to execute the same, and that act, while conferring such power, contains this restriction: "Provided that the administrator or executor of a trustee shall not execute the powers conferred by this act except upon the written request of any creditor secured in or by the deed of trust." There was no evidence or finding of fact contrary to the above affidavit in the cause filed by the defendant Dortch. The injunction was erroneously dissolved, and in rendering the judgment of nonsuit there was
Error.