
    CORNELIA T. JESSUP and JOSEPH T. NIXON v. THOMAS NIXON.
    (Filed 19 September, 1923.)
    1. Executors and Administrators — Deeds and Conveyances — Sales—Purchaser — Fraud—Irregularities—Instructions.
    The presumption is, certainly after the long lapse of years, in favor of the validity or regularity of a deed made by a mortgagee of the deceased owner of lands to the administrator who became the purchaser at the mortgage sale individually, and received the surplus as administrator and accounted for it to the clerk in his final settlement of the estate; and the burden of showing any irregularity in the execution of the power of sale being upon the heirs at law, whose action is to declare the sale void, a peremptory instruction of the judge to answer the issue-in their favor, is reversible error.
    3. Same — Heirs—Creditors—Homestead—Dower.
    Where the deed of a mortgagee in executing the power of sale to the administrator of the deceased owner, who became the highest bidder, individually, recites that the widow’s dower and homestead had been reserved, and it is found as a fact by the verdict that the price was a fair one, and that nothing was done by him at the sale to suppress or chill the bidding, and it appears that as administrator he had received and accounted for the surplus without objection from the creditors of the estate, who received only a proportionate and less amount of their claims: Sold, the reservation from the sale and deed made in pursuance thereof, of the dower and homestead exemptions, was not an irregularity of which the heirs at law could complain; and a peremptory instruction in their favor in their action to set aside the sale for irregularity or fraud, was reversible error.
    
      3. Same — Statute of limitations.
    
      Held, under the evidence in this case, it was reversible error for the court to instruct the jury that the plaintiff’s cause of action was not barred by the ten-year statute of limitations.
    4. Mortgages — Deeds and Conveyances — Patent Error — Sales —Irregularities.
    The recitation in a mortgage authorizing and empowering the mortgagor to execute the power of sale upon default in payment, upon giving notice to the party of the first part (himself), is patently a clerical error, which will not nullify the sale or deed to the purchaser thereat.
    Appeal by defendant from Connor, J., at April Term, 1923, of Pee-QUIMANS.
    This was an action begun 11 August, 1921, to set aside a sale made 1 July, 1896, under a mortgage. The plaintiffs are the heirs at law of Francis Nixon, deceased, who on 3 September, 1889, executed a mortgage to David Cox, duly recorded, to secure an indebtedness of $350. Francis Nixon died 30 March, 1896, in possession of the premises— 104 acres of land.
    The plaintiff contends that the sale at which the defendant purchased was invalid because not preceded by due notice and advertisement as required in the mortgage, and because the dower and homestead were reserved, and not sold, contrary to the terms of said mortgage and because the defendant was the administrator of the mortgagor when he became purchaser.
    That, as further alleged, he purchased the land at a grossly inadequate price, giving those present at the sale to understand that he was buying for the widow and plaintiffs, thereby inducing others not to bid. The court instructed the jury to answer the first issue “Tes” and the second issue “Yes.”
    The jury found as to the third issue that the fair market value of the land at the time of the sale was $1,250. Fourth issue, that the defendant did not fraudulently procure the foreclosure of said mortgage and the sale of the land, nor cause same to be sold subject to the dower interests of the widow and the homestead of the children, and thereby obtain the same at a grossly inadequate price as alleged in the complaint ; and fifth issue, that the defendant did not, with the purpose of purchasing the property in question at an undervaluation, cause or knowingly permit it to be understood at such sale that he was purchasing such property for the benefit of the heirs of the mortgagor, deceased, as alleged.
    The sixth issue was, “Is the plaintiffs’ cause of action barred by the ten-year statute of limitations as alleged in the answer?” which the court instructed the jury to answer “No.”
    
      The court entered judgment on the verdict that the plaintiffs are entitled to redeem the land described in the complaint, and decreed that the purchaser held the same upon the trust imposed by the mortgage deed, appointed a referee to state an accounting between the parties and refused a motion for a new trial upon the first, second and sixth issues. Appeal by defendant.
    
      Bhringhaus & Hall and, Meehins & McMullan for plaintiff.
    
    
      Charles Whedbee, Thompson & Wilson, Ward & Grimes, and Stephen G. Bragaw for defendant.
    
   Clare, C. J.

There was no evidence that due notice and advertisement of sale were not given in 1896, or that the mortgage sale was not regular. It was therefore error- to instruct the jury to answer the first issue “Yes.” The ordinary presumption is, certainly after the lapse of 25 years, as in this case, that notice and advertisement of sale were given; but even if that were not so, there was no presumption that they were not given so as to justify the court in instructing the jury, as a matter of law, they were not.

, If the sale was made subject to the widow’s dower and the homestead, this was for the benefit of the widow and children, and is not a matter for which they can complain after the lapse of 25 years so as to have this sale declared invalid. Their creditors might have protested this reservation, but that they gave up to the widow a dower which she had released and thus reduced the amount ’ available for the payment of debts does not give the plaintiffs an equity to have the sale set aside after this lapse of time and to charge the defendants with the rents of-the land. Oertainly.it was not proper for the court to instruct the jury peremptorily to answer the second issue as asked by plaintiffs and given.

The jury have found that the defendant did not fraudulently procure the foreclosure of said mortgage and the sale of said land and cause the same to be sold subject to the dower interests of the widow and the homestead rights of the children, and thus obtain the same at a grossly inadequate price as alleged in the complaint.

The jury have also found the fifth issue that the defendant did not, while administrator, and with the purpose of purchasing the property in question at undervaluation, cause or knowingly permit it to be understood at the mortgage sale that he was purchasing such property for the benefit of the heirs of Francis Nixon, deceased, as alleged, and it was error for the court to charge the jury that -the plaintiffs’ cause of action was not barred by the statute’s limitation.

'The presumption of law is in favor of regularity in the execution of a power of sale, and if there was any failure to advertise the property, tbe burden is upon tbe party alleging it. Jenkins v. Griffin, 175 N. C., 184; Troxler v. Gant, 173 N. C., 422; Cawfield v. Owens, 129 N. C., 286. After a lapse of more tban 25 years and after tbe death, as in tbis case, of every witness wbo would bave knowledge of tbe matter, tbis presumption would go, not only to tbe regularity in advertising, but is in favor of tbe regularity of tbe execution of tbe power of sale. Certainly tbe court could not instruct tbe jury to answer affirmatively tbat tbe sale was made without notice and advertisement.

Tbe estate of Francis Nixon, Jr., tbe mortgagor, was fully administered and tbe final-account filed on 27 July, 1897, duly audited and approved. Tbe assets therefrom were distributed to creditors as shown by tbe accounts, wbo received in tbe distribution 53 per cent of their claims.

Tbe court should not bave held tbat there was no evidence to rebut tbe presumption tbat tbe notice and advertisement required by tbe mortgage and by law bad been given and made. Second, tbe court should bave held that these 'plaintiffs could not be beard to assert claims to tbis land based upon an irregularity in reserving dower and homestead from tbe mortgage sale, tbe irregularity-inuring to, their benefit and causing them no loss.

Tbe estate of tbe mortgagor was settled and tbe report filed and recorded 30 July, 1897, which showed tbat after payment of tbe mortgage debt tbe assets were $611.49 and tbe indebtedness was $1,156.78, tbe creditors receiving a dividend of 53 per cent. Tbe plaintiffs mjist show tbat tbe assets of tbe estate were sufficient to pay bis debts before they could ask tbe court to decree tbat they recover tbis land and its rents when tbe creditors bad not been paid in full.

Tbe reservation' of tbe homestead was to tbe detriment solely of tbe creditors and not of tbe heirs at law. In Highsmith v. Whitehurst, 120 N. C., 123, where the land was purchased by tbe administrator, tbe court held tbat as tbe land brought full value and tbe price paid, which tbe creditors (as in tbis case) bad ratified - by accepting tbe proceeds which, together with tbe other assets, were not sufficient to pay tbe. debts of tbe estate in full, the heirs never bad any legal right to tbe land nor any equitable ground upon which to bave tbe sale set aside or to bave tbe purchaser declared a trustee for them. Tbis has been followed in Russell v. Roberts, 121 N. C., 322; Winchester v. Winchester, 178 N. C., 483.

Tbe dower of tbe widow is not involved as she is not a party to tbis action. In tbe light of tbe findings against tbe plaintiffs as to tbe allegations of fraud, we bave a case in which tbe administrator bought at a sale under tbe mortgage, paying a fair price for tbe property, acting in good faith though buying for himself, paying tbe money; tbe proceeds being applied in payment of tbe debts of tbe decedent, but tbe assets being insufficient to pa y more tban 53 per cent of tbe debts. Tbe administrator not procuring tbe land to sell for less tban its value, and tbe creditors, whose interest it was to see tbat it brought its fair value, taking no exceptions, tbe heirs of tbe mortgagor cannot have tbe deed set aside on account of alleged technical irregularities in order to recover tbe land which would not have .been theirs had tbe irregularities not occurred.

Tbe mortgage from Francis Nixon and wife, 23 September, 1889, is in all respects regular except tbat by a patent inadvertence it recited tbat if there should be default in payment of any part thereof, .the said party of tbe first part, etc., is hereby empowered and authorized, etc., to execute tbe power of sale upon giving notice to tbe party of the first part, etc. Tbe clerical inadvertence is patent and tbe sale was made, under tbe power of attorney, by tbe party of tbe second part, tbe mortgagee, David Cox, and bis deed to tbe purchaser, recites tbat tbe property was offered for sale at tbe courthouse door, subject to tbe dower of tbe widow and tbe homestead-rights of tbe children; tbat Thomas Nixon was tbe highest and best bidder at $675 and was declared to be tbe purchaser; tbat after tbe said sum bad been paid, $428 bad been applied in payment of tbe notes secured and'costs of sale, and tbe balance, to wit, $247, paid over to Thomas Nixon, administrator of Francis Nixon, and conveyance was made in due form by David Cox as mortgagee to Thomas Nixon, subject to tbe dower rights of tbe widow and tbe homestead rights of tbe minor children. This deed is in due form and was registered 4 July, 1896.

Tbe complaint does not seek to have this deed to Thomas Nixon declared to be in trust for tbe widow and children, but to have tbe court declare it a “nullity,” and tbat tbe heirs at law may be permitted to redeem tbe mortgage and for an accounting by tbe administrator for tbe timber sold or removed, and for rents and profits of tbe land.

Tbe sale was not made by Thomas Nixon as administrator or at all, but by tbe mortgagee, David Cox. Tbe recital in tbe deed from Cox is tbat “Thomas Nixon” bought and paid for tbe land for himself, and. tbe surplus, “after tbe payment of notes and costs of sale,” was paid over to him “as administrator.” There is nothing in this which entitles tbe plaintiffs to have him decreed a trustee for them, especially in view of tbe express findings of tbe jury tbat be bad no part in procuring tbe sale of tbe land and tbat be did not buy at an under price nor chill tbe sale. Tbe $247 which was paid to him “as administrator” was duly accounted for in bis final account.

Error.  