dissenting.
Assuming without deciding that Weinman’s claim is of a type that can be raised in a foreclosure hearing, Weinman’s failure to pay the property taxes defeats its right to a release of the second 100-acre tract of land.
Weinman covenanted in the deed of trust to pay all taxes which would be levied against the property within thirty (30) days after they became due. It is not disputed that Weinman failed to timely pay a portion of the 1988 ad valorem property taxes. Real property taxes are due on 1 September of the fiscal year in which they are levied. N.C.G.S. § 105-360(a) (1988) (applicable statute); In re Foreclosure of Deed of Trust (Lorraine Corp., 41 N.C. App. 563, 566, 255 S.E.2d 260, 262, disc. rev. denied, 298 *761N.C. 297, 259 S.E.2d 914 (1979). Ad valorem taxes for 1988 were due on 1 September 1988. The thirty-day grace period for payment of taxes provided for in the deed of trust expired on 30 September 1988. Thereafter, by failing to pay these taxes, Weinman was not in compliance with the terms of the deed of trust.
The deed of trust explicitly provides that “[notwithstanding anything herein contained, Grantor shall not be entitled to any release of property unless Grantor ... is in full compliance with all of the terms and provisions of . . . this Deed of Trust . . . .” Because Weinman was not in compliance with the deed of trust at the time of the second payment of principal and interest, such noncompliance defeated Weinman’s right to a release of the second 100-acre tract.
The majority holds that North Mecklenburg is precluded from foreclosing on the basis of the failure to pay taxes because North Mecklenburg failed to give proper written notice in accordance with the terms of the deed of trust. Although this may be true, the foreclosure sale was sought on the basis of the failure to make the 7 April 1990 payment of principal and interest, not the failure to pay the taxes. Thus, the issue is not whether North Mecklenburg could foreclose based upon the failure to pay taxes, but whether such failure to pay taxes defeats Weinman’s right to a release.
The majority relies on the case of Oliver v. Finer, 224 N.C. 215, 29 S.E.2d 260 (1944), for the proposition that default on the deed of trust does not occur “relative to taxes until demand or notice is given and [Weinman] fails to comply.” This reliance is misplaced for two reasons. First, the foreclosure in Oliver was based on the failure to pay taxes, whereas in this case, foreclosure was based on failure to make the second principal and interest payment. The failure to pay taxes here relates only to the right to a release. Second, the deed of trust in Oliver did not specify a time when taxes were due. Hence, the Supreme Court held notice was therefore necessary before initiating foreclosure. In this case, however, the time when taxes were due was clearly specified in the deed of trust. See Lorraine Corp. at 565, 255 S.E.2d at 262 (holding that Oliver does not control when deed of trust designates specific time when payment of taxes is due).
Because Weinman has no right to have the 100-acre tract released, North Mecklenburg’s failure to release does not constitute a defense to the petition for foreclosure under N.C.G.S. § 45-21.16. *762Accordingly, the trial court erred in refusing to authorize the foreclosure sale and I would reverse and remand this case for entry of an order authorizing the foreclosure sale to proceed.
Furthermore, Weinman is not without recourse. Weinman may file a suit to enjoin this foreclosure sale under N.C.G.S. § 45-21.34 in which it may assert any equitable ground sufficient to enjoin the foreclosure sale. See N.C.G.S. § 45-21.34 (1984) (injunction may be sought for any “equitable ground which the court may deem sufficient”); In re Foreclosure of Deed of Trust (Helms), 55 N.C. App. 68, 72, 284 S.E.2d 553, 555 (1981), disc. rev. denied, 305 N.C. 300, 291 S.E.2d 149 (1982) (equitable defenses to foreclosure should be asserted in action under N.C.G.S. § 45-21.34); Burgess at 604, 267 S.E.2d at 918 (action under N.C.G.S. § 45-21.34 available to remedy any prejudice after sale is authorized under N.C.G.S. § 45-21.16).