#### THOMAS PATTERSON BOWMAN and wife, PEGGY MOON BOWMAN v. JACK W. BARKER and DEANE F. BELL, Substitute Trustee

No. 7419SC804

(Filed 4 December 1974)

Mortgages and Deeds of Trust § 20— action to enjoin foreclosure of deed of trust — trustee necessary party

Where plaintiffs purchased a house and lot from defendant Barker and gave him a note secured by a second deed of trust on the property, the trustee named in the deed of trust was a necessary and indispensable party in an action to have the deed of trust declared null and void and the defendant Barker restrained from further actions with regard to selling the house and lot of plaintiffs.

■ Appeal by plaintiffs from Crissman, Judge, 3 June 1974 Civil Session of Randolph County Superior Court. Heard in the Court of Appeals 18 November 1974.

Plaintiffs instituted this action 5 June 1972, alleging that in October 1965, the plaintiffs purchased a house and lot situate in Randolph County, North Carolina, from the defendant, Jack W. Barker. For the purchase price, the plaintiffs executed a note to a building and loan association secured by a first deed of trust on the property. In addition to this, the plaintiffs gave a note in the amount of $650 to Jack W. Barker and secured same by a second deed of trust on the property. This second deed of trust named J. Harvey Luck as trustee. Luck died, and the defendant Deane F. Bell was duly appointed substitute trustee on 7 August 1969. Plaintiffs alleged that at the time of giving the note of $650 secured by the second deed of trust, the defendant Barker promised to do certain additional work on the house; that despite repeated demands therefor, the defendant Barker has failed and refused to do any additional work on the house; that the defendants Barker and Bell have threatened and harassed the plaintiffs, thereby causing the plaintiffs to pay an additional sum of $100 which was not due; that on 25 May 1972, the defendants wrongfully sold the plaintiffs’ house and lot at a purported foreclosure sale; that said sale is null and void and of no legal effect and the plaintiffs wish it so declared; that the defendants have placed the plaintiffs in fear and have caused the plaintiffs to suffer mental anguish. The plaintiffs thereupon seek monetary damages, a declaration that the deed of trust is null and void, and that the defendants be restrained from any further actions towards completion of the sale of plaintiffs’ house and lot.

*111The plaintiffs procured a temporary restraining order on 14 June 1972, restraining the defendants from any further proceedings towards selling the house and lot. This temporary restraining order was continued from time to time until 28 September 1972, when it was continued until final judgment in the cause. The original defendant Barker died, and his ad-ministratrix adopted the pleadings filed in his behalf on 13 May 1974.

On 15 May 1974, the defendants moved for judgment on the pleadings or a summary judgment for that the complaint fails to state a cause of action and that the statute of limitations bars any action based upon the contract purportedly entered into 6 October 1965.

On 6 June 1974, the motion for judgment on the pleadings or summary judgment was heard, and the court adjudicated that the plaintiffs had failed to state a claim for relief against the defendant Bell, and it was adjudged that the motion for summary judgment as it related to the defendant Bell, substitute trustee, should be allowed. It was further adjudged that the plaintiffs have and recover nothing of the defendant Bell and that the action as to the defendant Bell be dismissed.

From this judgment, plaintiffs appealed.

Ottway Burton for plaintiff appellants.

Bell, Ogbwrn & Redding by J. Howard Redding for defendant appellees.

CAMPBELL, Judge.

The present status of this case reveals not only an action for monetary damages against the defendant Barker but likewise an action to have a deed of trust securing a note declared null and void and the defendant Barker restrained from further actions with regard to selling the house and lot of the plaintiffs. In this situation, the trustee in the deed of trust is a necessary and indispensable party. Smith v. Bank, 223 N.C. 249, 25 S.E. 2d 859 (1943) ; Grady v. Parker, 228 N.C. 54, 44 S.E. 2d 449 (1947). The judgment dismissing the action as to Bell, substitute trustee, is erroneous.

Reversed.

Judges Morris and Martin concur.