dissenting.
I dissent. I believe there is only one way the transactions in this case may be construed and that is that the parties intended that the Ironwoods property be substituted for the Franklin Street property as security for the debt owed by Goforth Properties to the petitioners. This the parties had a right to do. The recording of the supplemental deed of trust on the same day as the release of the first deed of trust shows the recording of the two instruments was part of a single transaction. It is inconceivable to me that as a part of this transaction the parties intended that a deed of trust would be recorded which could not be foreclosed. I do not believe the foreclosure of the first deed of trust was a condition precedent to the foreclosure of the supplemental deed of trust and I would let the foreclosure proceed.
I also do not believe the anti-deficiency judgment statute, N.C.G.S. § 45-21.38 (1991), is any impediment to the foreclosure in this case. Certainly the two cases upon which the majority relies, Realty Co. v. Trust Co., 296 N.C. 366, 250 S.E.2d 271 (1979) and Merritt v. Edwards Ridge, 323 N.C. 330, 372 S.E.2d 559 (1988), are not authority for the result reached in this case. The parties had the right, which they exercised in this case, to substitute for the original security. When this substitution was made, the new deed of trust was not a purchase money deed of trust. There is no reason why this deed of trust cannot be foreclosed.
I vote to reverse the superior court.