Betsy C. HODGES, Administratrix d. b. n. of Estate of Pattie Banks Dunston, Deceased
v.
James A. WELLONS, Jr., Trustee, Smithfield Savings & Loan Association, and Jesse Grissom and wife, Mildred Grissom.
No. 7011SC269.
Court of Appeals of North Carolina.
August 5, 1970. Certiorari Denied October 5, 1970.*692 T. Yates Dobson, Jr. and L. Austin Stevens, Smithfield, for plaintiff.
Basil Sherrill, Raleigh, and Wellons & Wellons, by James A. Wellons, Jr., Smithfield, for defendants.
BROCK, Judge.
Plaintiff contends that the trial court erred in ruling the complaint failed to state a claim upon which relief can be granted.
By stipulation the deed of trust was incorporated into the complaint. It shows upon its face that Smithfield Savings and Loan Association was under no obligation to collect the rents from the mortgaged *693 property and apply them to the monthly payments on the note. It is true that the terms of the deed of trust undertake to assign the rents as further security, but clearly the terms impose no obligation upon the creditor to actually collect the rents. Therefore there has been no violation of legal duty in failing to collect the rents, and the allegations pertaining thereto fail to state a cause upon which relief can be granted.
Plaintiff alleged that the trustee advertised and sold the property under the power of sale contained in the deed of trust at a time when payments on the note were in arrears; this alleges that the trustee acted in accordance with the contract and the law. Plaintiff only complains that the trustee did so "without any notice to any of the heirs of Pattie Banks Dunston." In the absence of a valid contract so to do, there is no requirement that a creditor shall give personal notice of a foreclosure by sale to a debtor who is in default. Certain-Teed Products Corp. v. Sanders, 264 N.C. 234, 141 S.E.2d 329; Woodell v. Davis, 261 N.C. 160, 134 S.E.2d 160. The mortgagor could not demand notice of intention to sell under the power, and her heirs at law, and personal representative, stand in the same shoes. Woodell v. Davis, supra. It may well be appropriate, desirable, and courteous in many instances for a trustee to give actual notice to the debtor, the representative of his estate, or his heirs, of an intention to advertise and sell under a power of sale, nevertheless, such actual notice is not required as a matter of law. Woodell v. Davis, supra.
Therefore the allegations of failure to give notice fail to state facts upon which relief can be granted.
A gross inadequacy of purchase price, when coupled with any other inequitable element, will induce the court to interpose and do justice between the parties. Weir v. Weir, 196 N.C. 268, 145 S.E. 281. However, no irregularity in the foreclosure sale is alleged here. The only obligation of the trustee to the heirs and estate of the debtor was to conduct and consummate the foreclosure sale in accordance with law. There is no suggestion that the trustee did otherwise.
We hold that the trial judge correctly concluded that the facts alleged in the complaint do not state a claim upon which relief can be granted.
Plaintiff contends that the trial judge committed error when he considered defendants' demurrers as motions made under Rule 12(b) (6).
Defendants' demurrers were filed on 25 and 26 June 1969. The Rules of Civil Procedure became effective 1 January 1970. On 13 February 1970 Judge Carr considered the demurrers as motions under Rule 12(b) (6). A motion under Rule 12(b) (6) performs substantially the same function as a demurrer for failure to state facts sufficient to constitute a cause of action. Plaintiff was not taken by surprise because the grounds stated in the demurrers were grounds covered by Rule 12(b) (6). We hold that Judge Carr acted properly in considering the demurrers as he did.
Plaintiff contends that it was error for Judge Carr to dismiss the action; plaintiff argues that she should have been allowed to amend. This raises the question of whether the complaint contains a statement of a defective cause of action as opposed to a defective statement of a good cause of action.
A complaint may be dismissed on motion filed under Rule 12(b) (6) if it is clearly without merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or absence of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim. Cf. 2A Moore's Federal Practice § 12.08; *694 Turner v. Gastonia City Board of Education, 250 N.C. 456, 109 S.E.2d 211. In our opinion the trial judge ruled correctly.
Affirmed.
BRITT and HEDRICK, JJ., concur.