JONES
v.
PERCY et al.
No. 22.
Supreme Court of North Carolina.
February 25, 1953.*701 Carter & Ross, Washington, for plaintiff appellee.
*702 J. D. Paul and John A. Wilkinson, Washington, for defendants appellants.
BARNHILL, Justice.
The defendants here properly gave notice of their intention to assert that the foreclosure deed relied on by plaintiff was insufficient to pass title to him by alleging that "such sale was invalid and not made in accordance with the directions and provisions of the law * * *." There was no motion to require defendants to particularize or make their general allegation more specific. In the trial defendants confined their attack on this deed to evidence of want of proper advertisement. An issue directed to this defense was submitted to the jury without exception. Hence plaintiff is not now in a position to contend that the primary questions defendants seek to present for decision on this appeal are not properly before the court for consideration.
In its charge on the first issue the court instructed the jury as follows:
"The Court instructs you in relation to this particular issue, the burden of which is upon the defendant, to convince you that the Washington Progress was or is not a newspaper of general circulation as required and contemplated by the Statutes of North Carolina, the Court instructs you that if you believe the testimony of Mr. Ashley Futrell that the newspaper is entered as second class matter with the U. S. Post Office Department, that it is a newspaper published once each week, that it is listed as an approved newspaper by the North Carolina Press Association, that it is distributed generally in Beaufort County, that it carries general news, advertisements, editorials, although these editorials were lifted from the Washington Daily News or some other newspaper, then the Court instructs you it would be your duty to answer that issue Yes; if you are not satisfied, not beyond a reasonable doubt, not by the weight of the evidence, or not by the preponderance of the evidence, but if you are not satisfied as to these facts, then you will answer that issue No."
Upon which party, under this instruction, did the court place the burden of proof on the first issue? In the beginning it stated that the burden rested upon the defendants to offer evidence which would entitle them to a negative answer thereto. Yet, at the end the jury was instructed that if it was not satisfied as to the existence of certain detailed facts tending to show that the Washington Progress was a newspaper within the contemplation of the statute, it should answer the issue "no." This would seem to place the burden of proof on the plaintiff.
If the charge is to be construed to place the burden of proof on the defendants, then they have no cause to complain on that ground.
In an ejectment action in which the parties claim through a common source, the burden on the issue of title rests upon the plaintiff or other party asserting title and right of possession to connect his title to the common source of title by an unbroken chain of conveyances and show that (1) the land in controversy is embraced within the bounds of the deeds or other instruments upon which he relies, and (2) the title thus acquired is superior to that claimed by his adversary. Thereupon the defendant, or party in possession, may attack any link in the chain of title relied on by the party seeking to oust him without prior supporting allegation. Ownbey v. Parkway Properties, Inc., 221 N.C. 27, 18 S.E.2d 710, and cases cited; Toler v. French, 213 N.C. 360, 196 S.E. 312; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26.
Under this rule when plaintiff offered the foreclosure deed upon which he relies, the defendants were privileged to attack it as invalid in law without first having pleaded the failure of the trustee to advertise the foreclosure sale as required by law. Ownbey v. Parkway Properties, supra; Powell v. Turpin, supra.
But the attack is in the nature of an affirmative defense, and the burden rests upon him who makes it to carry the burden of proof. This rule, which this *703 Court, with one exception, has consistently followed, is stated by Brogden, J., speaking for the Court, in Biggs v. Oxendine, 207 N.C. 601, 178 S.E. 216, 217, as follows:
"The law presumes regularity in the execution of the power of sale in a deed of trust duly executed and regular upon its face; and, if there is any failure to advertise properly, the burden is on the attacking party to show it." Cawfield v. Owens, 129 N.C. 286, 40 S.E. 62; Norwood v. Lassiter, 132 N.C. 52, 43 S.E. 509; Troxler v. Gant, 173 N.C. 422, 92 S.E. 152; Jenkins v. Griffin, 175 N.C. 184, 95 S.E. 166; Brewington v. Hargrove, 178 N.C. 143, 100 S.E. 308; Berry v. Boomer, 180 N.C. 67, 103 S.E. 914; Jessup v. Nixon, 186 N.C. 100, 118 S.E. 908; Douglas v. Rhodes, 188 N.C. 580, 125 S.E. 261; Brown v. Sheets, 197 N.C. 268, 148 S.E. 233, 63 A.L.R. 1357; Arey Brick & Lumber Co. v. Waggoner, 198 N.C. 221, 151 S.E. 193; Phipps v. Wyatt, 199 N.C. 727, 155 S.E. 721; Higgins v. Higgins, 212 N.C. 219, 193 S.E. 159; Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554; Elkes v. Interstate Trustee Corp., 209 N.C., 832, 184 S.E. 826; Dillingham v. Gardner, 219 N.C. 227, 13 S.E.2d 478.
But defendants cite and rely on Jefferson Standard Life Insurance Co. v. Boogher, 224 N.C. 563, 31 S.E.2d 771, 772, which we must concede is in conflict with the decisions above cited and others of like import. It is the one case in our reports in which we have held that in an ejectment action in which the defendant attacks a foreclosure deed relied on by plaintiff on the ground that the foreclosure sale was not properly advertised, the burden of showing compliance with the requirements of the statute rests upon the plaintiff. In so holding, the opinion in that case cites no supporting authority. Furthermore, our many decisions contra were inadvertently overlooked.
Even there it is stated that the recitals in a foreclosure deed "are prima facie evidence of the correctness of the facts therein set forth, and the burden of proving otherwise is on the person attacking the sale, in this case the defendants, Dillingham v. Gardner, 219 N.C. 227, 13 S.E.2d 478 * * *." And in the Dillingham case the Court says [219 N.C. 227, 13 S.E.2d 482]: "* * * the burden is upon the trustor attacking a foreclosure to prove his grounds for attack since the execution of the power of sale contained in the deed of foreclosure is presumed regular."
Since this decision is clearly out of line with the rule long established in this jurisdiction, it is expressly overruled on the question of the burden of proof on an issue directed to an attack upon the validity of the advertisement of a foreclosure sale under which a party claims title. And we reassert the rule that when in an ejectment action a party attacks a foreclosure deed relied on by his adversary on the grounds of irregularity in the foreclosure sale, the burden of proof on the issue thus raised rests upon him who asserts the irregularity. To invoke this rule, however, it must appear that the deed (1) is regular upon its face, (2) was duly executed, and (3) contains recitals which show compliance with the statute regulating the foreclosure of a deed of trust or mortgage.
But there is error in the excerpt from the charge to which defendants except. Our statute, G.S. § 1-597, requires publication of notice of a foreclosure sale under a mortgage or deed of trust in some newspaper published in the County. It further provides that the newspaper in which such notice is published must be a newspaper having "a general circulation to actual paid subscribers". And if not published in a newspaper as defined in the statute, such notice "shall be of no force and effect".
Under these provisions of the statute, the publication of notice of sale under the power contained in a deed of trust is wholly ineffective unless it is published in a newspaper having a general circulation, within the County where the land to be sold is located, to subscribers who have actually paid the subscription price therefor. Yet in detailing the facts the jury must find in order to answer the first issue in the affirmative, the court made no reference to this essential requirement of the law. A careful examination of the charge as a whole fails to disclose that this oversight was later corrected. Since the defendants offered substantial *704 evidence from which the jury might well have found that the newspaper in which the notice was published failed to meet the requirements of the law, it is apparent that the error was prejudicial to them.
The defendants offered evidence tending to show that after the execution of the separation agreement, there was a reconciliation and they reassumed their marital status. They contend that this rendered the deed of separation void; that the locus was originally owned by them as tenants by entirety; and that the invalidation of the separation agreement rendered the conveyance of the locus to the male defendant void; and that therefore plaintiff has failed to establish title to the premises described in the complaint.
On this record their contentions in this respect are untenable for that (1) there is no exception in the record which properly presents the question; (2) this is not an attack which may be made on one of plaintiff's muniments of title without supporting allegation in the answer, Alley v. Howell, 141 N.C. 113, 53 S.E. 821; Gibbs v. Higgins, supra, and (3) in any event defendants tendered no issue directed to this phase of their testimony.
Since the question may arise on the rehearing, we make no comment on the legal effect of the reassumption of the marital relations upon a deed executed pursuant to the terms of the separation agreement.
Technically the foreclosure deed is sufficient to convey the legal title even though the sale was not advertised as required by law and the person holding the legal title to land is entitled to the possession thereof. Ownbey v. Parkway Properties, Inc., supra. Therefore, we could conclude that plaintiff is, in any event, entitled to judgment. However, this would not settle the real question at issue but would merely invite more litigation. For that reason we have discussed and decided the questions which are essential to a final determination of the cause.
For the reasons stated there must be a
New trial.