{ "id": 8550349, "name": "IN THE MATTER OF THE FORECLOSURE OF R. WOODROW NORTON, JR., UNMARRIED", "name_abbreviation": "In re the Foreclosure of Norton", "decision_date": "1979-06-05", "docket_number": "No. 7830SC729", "first_page": "529", "last_page": "533", "citations": [ { "type": "official", "cite": "41 N.C. App. 529" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "405 U.S. 977", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11752800, 11752569, 11752514, 11752387, 11752258, 11752454, 11752871, 11752616, 11752948, 11752311, 11752728, 11752665 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/405/0977-10", "/us/405/0977-06", "/us/405/0977-05", "/us/405/0977-03", "/us/405/0977-01", "/us/405/0977-04", "/us/405/0977-11", "/us/405/0977-07", "/us/405/0977-12", "/us/405/0977-02", "/us/405/0977-09", "/us/405/0977-08" ] }, { "cite": "183 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567842 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0361-01" ] }, { "cite": "87 S.E. 534", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "pin_cites": [ { "page": "536", "parenthetical": "cite omitted" } ], "opinion_index": 0 }, { "cite": "170 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661231 ], "year": 1916, "pin_cites": [ { "page": "604", "parenthetical": "cite omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0601-01" ] }, { "cite": "179 S.E. 2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554338 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0457-01" ] } ], "analysis": { "cardinality": 498, "char_count": 10776, "ocr_confidence": 0.818, "pagerank": { "raw": 1.8730416979752485e-07, "percentile": 0.7265350219259887 }, "sha256": "4b168c69a9514ed9fa946af8e84412abd3ef1d985388f36107a8f99d51ea571c", "simhash": "1:d1fbe54cb343bc56", "word_count": 1853 }, "last_updated": "2023-07-14T18:02:40.540741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and ERWIN concur." ], "parties": [ "IN THE MATTER OF THE FORECLOSURE OF R. WOODROW NORTON, JR., UNMARRIED" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe trial court found as fact that\n9. Notice has been given to all those parties entitled thereto under the terms of Article 2A, Chapter 45 of the North Carolina General Statutes, specifically including the record owner of the real estate, namely R. Woodrow Norton, Jr., and the court further finds that no other party claiming to be the record owner has intervened in this action or has caused any collateral action to be filed asserting their ownership thereto and that there was no evidence offered by R. Woodrow Norton, Jr., that there is any other record owner of the real estate which secures the above referred to debt other than him.\nRespondent argues that this finding is not based upon the evidence.\nRespondent offered into evidence a deed of 15 February 1966 conveying certain land in Smithbridge Township from Robert W. & Blanche Norton to Robert W. Norton, Jr. and Anita Myra Norton, with a reserved life estate in the grantors. The deed of trust executed by respondent conveys as security certain land in Smithbridge Township, \u201ca part of the same property conveyed from Robert W. Norton, Sr. and wife, Blanche Norton to Robert W. Norton, Jr. and Anita Myra Norton by Warranty Deed dated February 15, 1966.\u201d Respondent contends that he has shown by his exhibit that he is not the only record owner of the land, and that petitioner has failed to comply with the requirements of G.S. 45-21.16(b)(3) that notice of hearing be given to \u201cevery record owner of the real estate,\u201d meaning \u201cany person owning a present or future interest.\u201d\nPetitioner responds that there are deeds in existence from Robert and Blanche Norton and from Anita Myra Norton to respondent, apparently arguing that these deeds convey to respondent their interests in the property. However, these purported deeds do not appear in the record on appeal, so we do not consider them. We find that on the face of the record petitioner has failed to comply with the statutory notice requirements. We find, as well, that respondent cannot complain of this failure, as he has shown no prejudice to his rights by it.\nRespondent argues that he received no notice of the hearing, but the record shows that he was present at the hearing and participated in it. It is well-settled that a party entitled to notice may waive notice in this way. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E. 2d 177 (1971). Further, assuming that there are other record owners of the property, respondent has shown no injury to him by petitioner\u2019s omission of notice to them. On this assignment of error respondent cannot prevail.\nRespondent next argues that the deed of trust is invalid for failure to include a sufficient description of the land offered as security. We disagree.\nThe deed of trust executed by respondent on 12 May 1977 conveys to the trustee:\nAll that tract or parcel of land lying and being in Smithbridge Township, Macon County, North Carolina and being 73.8 acres as described on a plat of survey dated April 22, 1977 and prepared by Roy A. Terrell and Associates, North Carolina Registered Surveyor No. L-806, said plat being recorded in Plat Book 4, Page 143, Clerk\u2019s Office, Macon County Superior Court. Reference to said plat being made for the express purpose of incorporating its description herein.\nRespondent apparently argues that because the plat was not actually recorded until 1 July 1977 it could not serve to provide the description for the deed of trust. The law of this jurisdiction holds otherwise. \u201c \u2018Real estate is sufficiently described in a conveyance by reference for identification to another deed or record specifically mentioned therein which accurately describes it. The map or plat referred to need not be registered.\u2019 \u201d Smathers v. Jennings, 170 N.C. 601, 604, 87 S.E. 534, 536 (1916) (cite omitted). The plat here was sufficiently identified to be incorporated by reference in the deed of trust.\nRespondent argues further that the deed of trust description fails because the plat contains no beginning point which would allow for locating the land on the ground. The plat indicates, however, that one corner of the tract is also Corner No. 1 of U.S.F.S. Tract No. 1028, a point which is identifiable upon the ground. We find that this is sufficient.\nThe witness Clay testified that before recording the deed of trust he inserted in it the book and page numbers where the plat was to be recorded. Respondent argues that these insertions render the deed of trust null and void, but our Supreme Court held to the contrary in Creasman v. Savings & Loan Assoc., 279 N.C. 361, 183 S.E. 2d 115, cert. denied 405 U.S. 977 (1971). One who signs a deed of trust with blanks and gives it to another for use is bound by the instrument as completed.\nThe trial court admitted into evidence the affidavit of the Register of Deeds of Macon County to the effect that \u201cin Plat Book 4 on page 143 a map has been recorded that was prepared by Roy A. Terrell and Associates, North Carolina Registered Land Surveyors # L-806, reflecting a plat of survey of 73.8 acres in Smithbridge Township, Macon County, North Carolina, which plat is dated April 22, 1977.\u201d The court accepted this affidavit over respondents\u2019 objection on the express condition that a certified copy of the plat be furnished to the court. This was done. The respondent objects to the affidavit\u2019s reference to \u201ca plat of survey,\u201d but there is no indication in the record that the trial court relied on this language as establishing that the plat was actually prepared from a survey. The court merely states that \u201c[t]he description of the land in the said deed of trust referred to a recorded plat and survey of the land in question,\u201d and the deed of trust in fact uses this language. Respondent\u2019s objection has no merit.\nRespondent\u2019s assertion that the trial court relied upon the findings made by the Clerk of Court is frivolous. The court in its findings of fact states only that the Clerk\u2019s order \u201cwas based on the necessary and requisite finding of facts as set forth in the North Carolina General Statutes 45-21.16(d)\u201d; it does not indicate that it is in any way influenced by these findings, and in fact expressly states that \u201crespondent has appealed for a de novo hearing, which this court heard.\u201d\nThe deed of trust refers to the plat and deed admitted as respondent\u2019s exhibit 1 as being recorded in the \u201cClerk\u2019s Office, Macon County Superior Court.\u201d The witness Clay, who prepared the deed of trust, testified that this was his error, caused by the fact that in Georgia, where he is licensed to practice, deeds and plats are recorded in the Clerk\u2019s Office rather than the Register of Deeds Office, and through habit he used the wrong designation. Respondent, though complaining of this error, has shown us no way in which he was prejudiced by the court\u2019s accepting it as a \u201ctypographical error,\u201d and we find no prejudice.\nRespondent argues that he received no notice of the substitution of trustee, but the uncontradicted evidence is that notice was sent by certified mail to his last known address, and that the receipt was returned signed.\nWith regard to respondent\u2019s argument that the Notice of Foreclosure incorrectly calculated the interest due, we note only that if such an error was made, it would not invalidate notice of the foreclosure in the absence of a showing that respondent was prejudiced by the error.\nRespondent has shown us no prejudicial error. The order of the trial court is\nAffirmed.\nJudges MARTIN (Robert M.) and ERWIN concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Downs & Cabe, by James U Downs, for petitioner appellee.", "Herbert L. Hyde, for respondent appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF THE FORECLOSURE OF R. WOODROW NORTON, JR., UNMARRIED\nNo. 7830SC729\n(Filed 5 June 1979)\n1. Mortgages and Deeds of Trust \u00a7 26.1\u2014 foreclosure hearing \u2014 failure to give notice to other owners\nRespondent was not prejudiced by petitioner\u2019s failure to give notice of a foreclosure hearing to other record owners of the realty securing the deed of trust being foreclosed as required by G.S. 45-21.16(b)(3).\n2. Mortgages and Deeds of Trust \u00a7 26.1\u2014 foreclosure hearing \u2014waiver of notice\nRespondent waived notice of a foreclosure hearing by his presence at and participation in the hearing.\n3. Mortgages and Deeds of Trust \u00a7 4\u2014 deed of trust \u2014description of land \u2014 reference to plat recorded later\nA deed of trust did not contain an insufficient description of the land offered as security because the plat to which the deed of trust referred for a specific description was not recorded until after the deed of trust was executed.\n4. Mortgages and Deeds of Trust \u00a7 4\u2014 description of land \u2014 reference to plat \u2014 point identifiable on ground\nA description in a deed of trust is not insufficient on the ground that the plat referred to contains no beginning point which would allow location of the land on the ground where the plat indicates that one corner of the land is also Corner No. 1 of the U.S.F.S. Tract No. 1028, a point which is identifiable upon the ground.\n5. Mortgages and Deeds of Trust \u00a7 5\u2014 insertion of plat and book page numbers after execution\nA deed of trust was not rendered void by the fact that an attorney, before recording it, inserted in it the book and page numbers where the plat referred to therein was to be recorded, since one who signs a deed of trust with blanks and gives it to another for use is bound by the instrument as completed.\n6. Mortgages and Deeds of Trust \u00a7 4\u2014 description of land \u2014erroneous reference to plat and deed as recorded in Clerk\u2019s Office\nA deed of trust was not invalid because it referred to a plat and deed of the land conveyed as security as being recorded in the Clerk\u2019s Office rather than in the Office of the Register of Deeds.\nAPPEAL by respondent from Thornburg, Judge. Order entered 15 April 1978 in Superior Court, MACON County. Heard in the Court of Appeals 27 April 1979.\nPetitioner trustee seeks to foreclose on a deed of trust which secures a note in default. The Clerk of Superior Court of Macon County authorized the trustee to hold the foreclosure sale, and respondent appealed this order to Superior Court pursuant to G.S. 45-21.16(d).\nAt the hearing de novo, Randall Carver, president of the Rabun County Bank (Bank) of Clayton, Georgia, testified that on 12 May 1977 respondent borrowed $49,000 from the Bank, securing the note with a deed of trust upon a parcel of land located in Otto, North Carolina. This note has been delinquent since 12 August 1977.\nCharles Clay, a Georgia attorney, testified that he represented respondent in connection with the closing of the loan. Both parties offered exhibits into evidence. The trial court found a valid debt, a default, and a power of sale, and authorized the trustee to proceed with foreclosure. From this order respondent appeals.\nDowns & Cabe, by James U Downs, for petitioner appellee.\nHerbert L. Hyde, for respondent appellant." }, "file_name": "0529-01", "first_page_order": 557, "last_page_order": 561 }