Opinion
(August Term, 1848.)
A sale of land by a trustee under a deed of trust, made for the purpose of satisfying debts secured by the deed, is governed by the "act to make void parol contracts for the sale of lands and slaves."
APPEAL from the Superior Court of Law of MACON, at Spring Term, 1848, Battle, J., presiding.
No counsel in this Court.
This was an action of assumpsit for $210, being the price of a tract of land which Alfred Hester conveyed to the plaintiff, upon trust to sell and out of the proceeds pay certain debts mentioned in the deed. The plaintiff read the deed of trust in evidence, and offered further to give evidence by parol that he set the land up at auction for ready money, as directed in the deed and that the defendant was the highest bidder at the sum of $210, and that, before bringing this suit, he tendered to (456) the defendant a deed for the land in the fee simple, which he refused to accept. But the court refused to receive the evidence, being of opinion that the contract was not binding on the defendant, because it was not in writing, and the plaintiff was nonsuited and appealed.
The counsel for the plaintiff endeavored to take the case out of the "act to make void parol contract for the sale of lands and slaves," by assimilating a sale by the trustee in a deed of trust for securing and paying debts to a sale under execution, in which latter case it was held in Tate v. Greenlee, 15 N.C. 149, that statute did not apply. But there is no analogy between the cases. The sale under an execution or a decree is that of the law, through its ministers, and upon that ground alone is founded the doctrine of the case cited. But in making his sale a trustee does not act under an authority from the law, but upon his own title simply; and it is immaterial, to this purpose, whether his title be to his own use or that of others. It is said, indeed, that the trustee has no real interest in the subject, but is merely an agent for others; and, therefore, that there are none of those dangers of fraud or perjury against which the statute meant to provide. But if he could be looked on a part from his title, a trustee is not the agent of the law, but of private parties, and the statute wisely applies equally to contracts of sale effected by agents or by the owners themselves.
PER CURIAM. Judgment affirmed:
(457)