Smitherman v. Morris Plan Bank of Greensboro

The action was instituted to recover damages for alleged wrongful foreclosure of deed of trust on plaintiff's land, and for an accounting for payments and rents collected by defendants from plaintiff's land, alleged to have been sufficient to have paid the debt.

The defendants' answer alleges that the foreclosure was legal and proper, that it was duly advertised, and that the amount at which it was bid off, including taxes, was less than the debt due defendant bank, and that the title to the land has since been conveyed to innocent purchasers for value.

At the close of the evidence motion for judgment of nonsuit was sustained, and plaintiff appealed. The plaintiff's appeal from the judgment of nonsuit presents the question whether the plaintiff's evidence, taken in its most favorable light for him, is sufficient to entitle him to have it submitted to the jury. *Page 66

From the record before us, it appears that the plaintiff offered evidence tending to show that he borrowed from the defendant bank, in 1930, $2,000; that on 1 October, 1932, the amount had been reduced to $980.00; that thereafter he paid $100.00 at one time and $15.00 every two weeks until 5 April, 1933, when at the instance of defendant bank he turned over the rents on his property to be applied on the note; that the rents were thereafter collected each week by defendants; that in February, 1935, he was informed that the property had been sold in foreclosure under the deed of trust; that he had had no notice of foreclosure; that if he had, he would have arranged it; that ten dollars per week was collected from the rents.

Conceding that pursuant to the foreclosure sale the title to the property has passed to an innocent purchaser for value, it is apparent that the evidence of the plaintiff was sufficient to have entitled him to have it submitted to the jury under appropriate instructions, at least on the question of accounting with defendant bank and its successor, the defendant Commissioner of Banks, and there was error in entering judgment of nonsuit.

The judgment of nonsuit must be

Reversed.