#### CHRISTINE B. WARREN v. VIRGINIA-CAROLINA JOINT STOCK LAND BANK.

(Filed 28 September, 1938.)

1. Pleadings § 29—

A motion to strike out as a matter of right made after answer and on the day the case is calendared for trial, is properly denied for the reason that it is not made in apt time. C. S., 537.

2. Same—

Even though a motion to strike out is not made in apt time, the court has discretionary power to allow the motion during the term at which the case is calendared for trial.

*2073. Appeal and Error §§ 39, 40b — Where motion to strike out is addressed to court’s discretion, it will not be presumed that court denied the motion for want of power.

Defendant moved to strike out certain allegations of the complaint on the day the case was calendared for trial, and asked that the motion be allowed as a matter of discretion. The court denied the motion on the ground of want of power. Three days later, when the case was called for trial, the motion was again made and denied, the record failing to show more than the denial of the second motion. Seld: The record failing to show that the second motion was denied on the ground of want of power, it will be presumed on appeal that the motion was denied as a matter of discretion, and the exception to the denial of the first motion becomes immaterial.

4. Appeal and Error § 40b — Denial of motion to strike out held not prejudicial when no evidence in support of irrelevant allegations is admitted.

When a motion to strike out is addressed to the discretion of the trial court at the term the case is calendared for trial, a denial of the motion on the ground of want of power to entertain it cannot be held prejudicial when no evidence in support of the irrelevant allegations sought to be stricken out is admitted on the trial.

5. Mortgages §§ 35a, 39e — Where one employee of cestui holds the sale and another employee bids in property, sale is voidable.

In an action for damages for wrongful foreclosure, uncontradicted evidence that the sale was made by one employee of the cestui que trust and the property bid in by another employee of the cestui, and that the advertisement did not specify place of sale is sufficient to support the ruling of the court that he would instruct the jury that the sale was not a proper and valid foreclosure and that plaintiff trustors were entitled to the difference between the value of the land at that time and the amount bid.

Appeal by defendant from Bone, J., at February Term, 1938, of Beaufort.

No error.

This was an action to recover damages for wrongful foreclosure and sale of plaintiff’s land. Tbe record discloses tbe following material' facts:

In 1928 plaintiff borrowed $2,500 from tbe defendant Land Bank, and to secure tbe same executed deed of trust on ber land to tbe Southern Trust Company, trustee. Tbe name of tbe trustee was subsequently changed to tbe Southern Loan & Insurance Company. Default having been made in tbe payment of tbe debt, foreclosure sale was bad on 14 November, 1934, and tbe defendant Land Bank became tbe last and highest bidder for tbe land in tbe sum of $2,400. Report of sale was filed with tbe clerk 18 January, 1935, and on same date deed from tbe trustee to tbe Land Bank was executed. On tbe following day, 19 January, 1935, tbe defendant Land Bank conveyed tbe land to E. H. and Gr. M. Swanner for tbe consideration of $3,500.

Tbe plaintiff, conceding that tbe Swanners were innocent purchasers for value, brought ber action against tbe Land Bank alleging an invalid *208foreclosure, and offered evidence tending to show tbat tbe advertisement of tbe foreclosure sale did not specify tbe place of sale, tbat tbe sale was made by one employee of defendant and bid off for tbe Land Bank by another employee of defendant, and tbat tbe land was worth much more than tbe price at which it was bid off and conveyed to tbe Land Bank.

Tbe trial judge stated tbat upon this evidence be would charge tbe jury tbat tbe sale of tbe land was not a proper and valid foreclosure of plaintiff’s equity of redemption therein, and tbat tbe plaintiff was entitled to recover tbe difference between what tbe jury should find tbe land was worth in January, 1935, and tbe amount of plaintiff’s debt. It was thereupon agreed by defendant (reserving its exceptions to tbe court’s ruling with respect to tbe validity of tbe foreclosure sale) tbat tbe following issue should be submitted to tbe jury: “What was tbe value of plaintiff’s land, referred to in tbe complaint, on 19 January, 1935 ?” It was further agreed tbat tbe court might deduct tbe amount of plaintiff’s debt from tbe amount found by tbe jury in answer to said issue.

Tbe jury answered tbe issue $5,000 and tbe court deducted $3,242.87 as amount of plaintiff’s debt and rendered judgment in favor of tbe plaintiff for tbe difference, to wit, $1,757.13. From this judgment defendant Land Bank appealed.

Rodman & Rodman for plaintiff, appellee.

Grimes & Grimes and Worth •& Horner for defendant, appellant.

DeviN, J.

Defendant’s principal assignment of error is based upon tbe denial of its motion to strike certain allegations from tbe complaint, on tbe ground tbat they were irrelevant and prejudicial.

Tbe motion, however, was made after answer and on the day the case was calendared for trial, and was denied for tbe reason tbat it was not made in apt time (C. S., 537). The defendant then asked tbat its motion be allowed as a matter of discretion, and this was denied as not being a matter in the court’s discretion. When the case was reached for trial three days later tbe defendant again moved to strike out tbe offending allegations, and tbe motion was denied.

While tbe motion to strike was not made in proper time, that did not divest tbe court of the power, in tbe exercise of its sound discretion, to allow tbe motion during tbe term at which tbe case was on tbe calendar for trial, and tbe statement of tbe judge below, in denying tbe motion when first made, tbat it was not a matter of discretion, was an inadvertence (Hines v. Lucas, 195 N. C., 376, 142 S. E., 319; Washington v. Hodges, 200 N. C., 364, 156 S. E., 912; C. S., 536). But tbe motion to strike was made later in tbe week before tbe trial was begun, and the record at tbat time shows merely tbat tbe motion was denied. No *209reason was assigned for tbe action of tbe court. There is no presumption that tbe later ruling was based upon want of power. Tbe record does not preclude tbe assumption that tbe motion was denied in tbe exercise of discretion, since, as was said in Hogsed v. Pearlman, 213 N. C., 240: “Tbe ruling of tbe court below, in tbe consideration of an appeal, is presumed to be correct.” In tbis view tbe defendant’s exception to tbe former ruling of tbe court would seem to be without merit. Nor do tbe facts show an abuse of discretion. But if it be conceded that tbe last ruling of tbe court was also based on tbe erroneous view of want of power and that there was a failure to exercise tbe discretion vested in tbe court, nevertheless it appears that in tbe trial no evidence was admitted in support of tbe irrelevant allegations sought to be stricken from tbe complaint, and we cannot bold that tbe jury was influenced or tbe defendant prejudiced thereby, so as to require tbe granting of a new trial.

Tbe uneontradicted evidence bearing on tbe invalidity of tbe foreclosure was • sufficient to sustain tbe ruling of tbe trial judge thereon (Davis v. Doggett, 212 N. C., 589; Warren v. Susman, 168 N. C., 457, 84 S. E., 160; Hayes v. Pace, 162 N. C., 288, 78 S. E., 290; 41 C. J., 953), and tbis left as tbe only controverted issue tbe value of tbe land at tbe time tbe title passed to innocent purchasers for value. Tbe form of tbe issue was agreed to by tbe defendant. There was competent evidence to support tbe verdict of tbe jury and tbe charge of tbe court was free from error.

We have examined tbe other exceptions noted by defendant during tbe trial and find therein no sufficient ground upon which to overthrow tbe verdict and judgment below.

No error.