Anderson v. Moore

• Decision Date: 07 March 1951
• Docket Number: No. 94,94
• Citation: 63 S.E.2d 641,233 N.C. 299
• Court: North Carolina Supreme Court
• Parties: ANDERSON et al. v. MOORE et ux.

Page 641

63 S.E.2d 641

233 N.C. 299

ANDERSON et al. v. MOORE et ux.

No. 94

Supreme Court of North Carolina.

March 7, 1951

F. L. Carr, Wilson, for plaintiff appellee.

G. L. Parker, R. F. Mintz, Wilson, for defendants appellants.

DENNY, Justice.

Ordinarily a mortgagee in possession is required to account for the rents and profits he receives from the premises. Brown v. Daniel, 219 N.C. 349, 13 S.E.2d 623; Mills v. Mutual Building & Loan Ass'n, 216 N.C. 664, 6 S.E.2d 549; Fleming v. North Carolina Joint Stock Land, 215 N.C. 414, 2 S.E.2d 3; Kistler v. Wilmington Development Co., 214 N.C. 630 200 S.E. 400; Crews v. Crews, 192 N.C. 679, 135 S.E. 784; Weathersbee v. Goodwin, 175 N.C. 234, 95 S.E. 491; Green v. Rodman, 150 N.C. 176, 63 S.E. 732; Glenn on Mortgages, Vol. II, § 206, p. 1033; Jones on Mortgages, (8th ed.) Vol. II, § 1425; 59 C.J.S., Mortgages, § 856(a), p. 1657, and § 857(b), p. 1664; 36 Am.Jur., Mortgages, § 306, p. 843. If, however, he is permitted to remain in actual possession of such premises, as mortgagee, for a period of ten years and the mortgage debt has not been paid and no action to foreclose or redeem has been instituted in the meantime, title to the premises will be deemed to be in him, and the ten-year statute of limitations, G.S. § 1-47(4), if properly pleaded and relied upon, will be a complete defense to an action to redeem. Hughes v. Oliver (Oliver v. Hughes), 228 N.C. 680, 47 S.E.2d 6; Crews v. Crews, supra; Bernhardt v. Hagamon, 144 N.C. 526, 57 S.E. 222; Frederick v. Williams, 103 N.C. 189, 9 S.E. 298. And when the right to redeem is barred by the statute of limitations, G.S. § 1-47(4), the right to enforce an accounting is likewise barred.

Moreover, the right of the mortgagor to 'an account of the rents and profits of the land received by the mortgagee is purely and exclusively of equitable cognizance. At law he cannot be made to account. The mortgagor has a right of redemption only in equity, and the right to account is only an incident to this'. Jones on Mortgages, (8th ed.) Vol. II, § 1426, p. 913.

'The rule, then, is that the mortgagee's accountability must be adjudged in a suit to foreclose or a suit to redeem, or in connection with voluntary payment.' Glenn on Mortgages, Vol. II, § 206, p. 1035.

The plaintiff Anderson had been in possession of the premises involved herein, as mortgagee, for more than nineteen years, when defendants moved for an accounting. Consequently, any right the defendants may have for an accounting depends on whether the institution of the foreclosure suit by the plaintiffs in 1932, which is still pending, tolled the statute of limitations, G.S. § 1-47(4). That question appears to have been settled adversely to the plaintiff Anderson's position. Barnhill, J., in speaking for the Court in Massachusetts Bonding & Insurance Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436, 440, 138 A.L.R. 1438, with respect to the effect the institution of a foreclosure suit would have on the running of the statute of limitations, said: 'The action, once instituted within the 10-year period against all parties having any record interest in the land, suspends the running of the statute of limitations. Neither the parties to the action nor any one claiming under them can thereafter successfully plead such statute in bar of plaintiff's right to foreclose.' And since a mortgagor has the right to redeem, at any time before the sale of the property pledged to secure his debt by paying such indebtedness, he has a right to an accounting to determine whether or not there is anything due the mortgagee. 36 Am.Jur. Mortgages, § 301, p. 841; Glenn on Mortgages, Vol. II, § 210, p. 1043. If the mortgagee in possession has received sufficient rents and profits to liquidate the indebtedness secured by his mortgage, the mortgagor is entitled to have an entry of satisfaction entered on the judgment of foreclosure, the mortgage or deed of trust cancelled, and the premises surrendered to him free and clear of the indebtedness secured thereby.

The appellee Anderson contends, however, that since eighteen years have elapsed since the entry of the judgment of foreclosure, the defendants have been guilty of laches and should not be permitted at this late date to assert a right of redemption by a motion in the cause. This contention is untenable. In the case of Abernethy Land & Finance Co. v. First Security Trust Co., 213 N.C. 369, 196 S.E. 340, 341, this Court said: 'An action in court is not ended by the rendition of a judgment, but in certain respects it is still pending until judgment is satisfied. It is open to motion for execution, for the recall of an execution, to determine proper credits, and for other motions affecting the existence of the judgment, or the amount due thereon.' Federal Land Bank v. Davis, 215 N.C. 100, ...