Bizzell v. Roberts

• Decision Date: 18 October 1911
• Citation: 72 S.E. 378,166 N.C. 272
• Parties: BIZZELL et al. v. ROBERTS et al.
• Court: North Carolina Supreme Court

72 S.E. 378

166 N.C. 272

BIZZELL et al.

v.ROBERTS et al.

Supreme Court of North Carolina.

Oct. 18, 1911.

1. Mortgages (§ 401^*)—Maturity of Debts.

A provision of a mortgage securing a debt payable in installments, providing that the entire debt shall mature on nonpayment of interest or any installment as it becomes due, is valid and enforceable, in absence of fraud or unconscionable advantage in executing it.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1160-1165; Dec. Dig. § 401.*]

2. Mortgages (§ 408*)—Waiver of Forfeiture.

A provision of a mortgage securing a debt payable in installments that the entire debt shall mature on nonpayment of interest or any installment as it becomes due is waived by the mortgagee where the maturing of the debt is at his option and he accepts arrears with the intent to waive the forfeiture.

[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 408.*]

3. Pledges (§ 30*)—Note—Enforcement.

A creditor, who takes a note as additional security for his debt, may upon its maturity collect it according to its terms, whether the principal debt is due or not, in the absence of stipulations to the contrary.

[Ed. Note.—For other cases, see Pledges, Dec. Dig. § 30.*]

Appeal from Superior Court, Wayne County; Peebles, Judge.

Action by George D. Bizzell and others against J. B. Roberts and others. From a judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

Langston & Allen, for appellants.

W. T.Dortch and M. T. Dickinson, for appellees.

HOKE, J. It appeared in the complaint: That on the 3d of March, 1909, defendants J. B. Roberts and Julia Kate Roberts became indebted to plaintiff in the aggregate sum of $2,750, payable by installments and evidenced by the promissory notes of said defendants under seal, first, for $600, payable 60 days after date; second, for $500, payable 1 year after date; third, for $500, payable 2 years after date; fourth, for $500, payable 3 years after date; fifth, for $650, payable 4 years after date. There was mortgage on real estate securing said indebtedness and containing the stipulation that, if default be made on the payment of either of said notes and interest thereon when due, then all of said notes should become "due and payable at once." That defendant Roberts had made payments on said notes as follows: "On the first of said notes was paid $141 on March 18, 1909, and said note was paid in full on the 9th day of November, 1909, and the second of said notes was paid in full on the 9th day of November, 1909, and on the third of said notes $252,62 was paid on the 9th day of November, 1909, and on the 17th day of February, 1911, there was paid on the balance due on said notes the sum of $1,050, which credit is subject to a deduction of $47.23, the amount paid by the plaintiffs for taxes on said land for the years 1909 and 1910, and that no further payment has been made upon said notes, and the remainder of said indebtedness, to wit, $565.21, with interest thereon from the 17th day of February, 1911, is now due and owing to the plaintiffs by the defendants." The complaint further stated that on the 3d of June, 1909, defendants J. B. and Julia Kate Roberts, and their codefend-ant Zilphia A. Warren, in further security of said first-mentioned notes, executed their promissory note under seal for $450, with interest, etc., payable January 1, 1910, and that no part of this note had been paid; and on these allegations plaintiff demanded judgment on the $565.21 balance due on the principal indebtedness and for $450, with interest, being the amount due on the collateral. The present action was instituted on May 16, 1911, and defendant demurred to the complaint, assigning for cause that no part of plaintiffs' claim had matured at the time of action commenced.

Authority here and elsewhere is to the effect that where a debt is payable in installments, and same is secured by a mortgage containing provision that the entire debt shall mature on failure to pay the interest or specified portions of the principal as it comes due, or any other reasonable...