Brame v. Swain

• Decision Date: 19 October 1892
• Parties: BRAME et al. v. SWAIN.
• Court: North Carolina Supreme Court

15 S.E. 938

111 N.C. 540

BRAME et al. v. SWAIN.

Supreme Court of North Carolina

October 19, 1892

Appeal from superior court, Vance county; BRYAN, Judge.

Action by Charles E. Brame and others against W. Y. Swain on certain notes given to secure the purchase price of certain land, and for a sale of the land to satisfy the same. Action dismissed. Plaintiffs appeal. Modified.

A personal judgment against defendant may be had on installment notes due at the commencement of the action, though the whole series has not matured.

The plaintiff Brame, on January 1, 1891, contracted to sell defendant his land, taking notes for the entire price, and maturing from time to time, therefor. Having used the said notes as collateral with his coplaintiffs, he and they bring this action, after two of said notes were past due, asking for judgment upon the notes, and for a sale of the land to satisfy them, and "for such other and further relief," etc. The defendant, admitting all the material allegations, insists that no sale can be made of the land till all the notes are past due. Plaintiffs moved for judgment upon the notes past due at the commencement of the action, and for a sale of the land to satisfy such notes. The motion was denied. Plaintiffs then moved for judgment against the defendant on the notes past due. This motion was also denied, and the action dismissed.

T. T Hicks, for appellants.

H. T Watkins, for appellee.

SHEPHERD J.

Where a contract is made for the sale of land, the purchase money to be paid in annual installments, and the vendee is let into possession, the vendor cannot maintain an action for specific performance until the last payment is due. The relation between such parties is substantially that subsisting between mortgage and mortgagor, and governed by the same general rules, (Jones v. Boyd, 80 N.C. 258;) and, in the absence of a stipulation to that effect, a mortgage cannot be foreclosed until the maturity of all of the notes which it is given to secure, (Harshaw v. McKesson, 66 N.C 266.) These authorities fully sustain his honor in declining to decree a sale of any part of the land. We think, however there was error in refusing the plaintiffs a personal judgment on the notes actually due at the commencement of the action. There is nothing in the contract of sale which either expressly or by implication amounts to an agreement to suspend the personal remedy; and in Harshaw's Case ...