Cone v. Hyatt
| Decision Date | 06 June 1903 |
| Parties | CONE v. HYATT. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yancey County; Hoke, Judge.
Action by Moses H. Cone against Jason L. Hyatt. Judgment for defendant. Plaintiff appeals. Reversed.
This action was brought by the plaintiff against the defendant to recover certain lands described in the pleadings. All of the parties claimed under J. W. Young, who, with his wife, on the 8th day of September, 1885, executed a deed of trust to C. E Graham for the land to secure a debt due to the plaintiff of $1,800, which was evidenced by two notes, one for $800 payable in 12 months, and the other for $1,000, payable in 18 months, after said date, with power of sale to be exercised if the defendant failed to pay the said notes or any part thereof at maturity, the proceeds of sale to be applied to the payment of the notes, whether both are due at the time of sale or not. Young having failed to pay the said notes when they became due, and the debt remaining unpaid on May 14 1884, he executed on that date to said Graham another deed of trust conveying the same land and an additional tract reciting the nonpayment of the notes and the agreement of the plaintiff to forbear the enforcement of the trust and allow Young one year from said date to pay one-half of the indebtedness, and, if one-half should be paid at the end of the year, then another year within which to pay the remaining part of the debt. It was further provided in the deed that if there should be default in the payment of one half of the debt at the end of the first year, or if that one half was paid at maturity and there should be default in the other half at maturity, then the trustee should be authorized to sell the land and apply the proceeds to the payment of said debt. Young failed to pay either one of the notes, and the trustee, some time before December 16, 1900, advertised the land for sale on January 14, 1901, and sold it on that day, under the power contained in the deed, to the plaintiff, and executed a deed to him. There was evidence tending to show that on February 27, 1888, Young paid $100 on the debt, and on December 16, 1900, the proceeds of the sale of part of the land which was sold under the power were applied to the debt by the trustee. The amount bid at the sale by the plaintiff was paid by him on January 14, 1901, and also credited by the trustee on the debt, leaving a balance of $2,600 or more due the plaintiff on the notes.
The plaintiff requested the court to charge the jury that the right of the trustee to sell under the power was not barred by the statute of limitations until May 4, 1901, and further that the plaintiff and trustee, if there was default in the payment of the first half of the debt, could elect to wait until the maturity of the second note before selling under the power, and, they having elected to sell after the latter date, the statute did not begin to run until May 4, 1891. The court refused the instruction, and charged the jury that upon the evidence the plaintiff was barred by the statute, and that they should answer "No" to the second and third issues, which were as follows: The jury answered the issues accordingly. The plaintiff in apt time excepted to the rulings and charge of the court, and appealed from the judgment rendered upon the verdict.
Justice & Pless, for appellant.
J. S. Adams, for appellee.
WALKER, J. (after stating the case).
We have held at this term, in Menzel v. Hinton, 44 S.E. 385, that the statute of limitations does not apply to a power of sale contained in a mortgage or deed of trust when the deed is foreclosed, not in an action brought for that purpose, but simply by the mortgagee or trustee executing the power of sale. The statute was intended to apply only to actions or suits, and this is apparent from the very language of the law. In a case where it became necessary to decide whether a sale under a power was a suit or an action within the meaning of a statute, it was held that Hall v. Bartlett, 9 Barb. 300. In Williams v. Mullis, 87 N.C. 159, it appeared that a sale had been made under an execution issued upon a judgment which was barred by the statute, and a motion was made to set aside the sale on this account. This court held that the statute could not be availed of except by answer, and, in the opinion of the court, Ashe, J., clearly sets forth the reason for the decision, in the following language: "If, then, the statute applies only to the remedy, it cannot operate to extinguish the judgment after the expiration of the ten years, until an action or proceeding in the nature of scire facias is brought to revive it, when the statutory bar may be set up by answer as a defense to the action; and this is the only mode prescribed in the Code of Civil Procedure by which a defendant can avail himself of such a defense." It is needless to pursue the discussion of this branch of the case any further, as the matter is fully examined, and the principles which govern in such cases are fully set forth, in Menzel v. Hinton, supra.
This ruling is perhaps sufficient to dispose of this appeal, but if the statute had applied to the case presented it could do so only by analogy, that is, by treating the proceeding taken out of court by the trustee in the execution of the power as substantially the same as a suit or action to foreclose the trust, and if this is done the analogy must be complete, and the same principles which would apply to the suit or action should be extended throughout to the proceeding for the execution of the power. The argument advanced to show that the statute does apply to the execution of the power by the trustee must proceed upon the assumption that there is such an analogy, for it must be conceded, in view of so many decisions by this and other courts which establish the proposition, that the debt is not extinguished by the running of the statute, and the latter affects only the remedy. The argument cannot be sustained upon the idea that the debt is gone and there is nothing, therefore, to support or justify the execution of the power. This court has said that the statute of limitations is a statute of repose. It suspends the remedy, but does not cancel the debt. Capehart v. Dettrick, 91 N.C. 351, 352.
If this supposed analogy between a proceeding to foreclose a deed of trust by advertisement and sale and a suit in court for that purpose does exist, and the principles which govern a suit in court upon a cause of action which is barred are applied to the facts of this case, we find that no attempt was ever made by the defendants to plead the statute before the sale or otherwise to obtain the benefit of it, and the case therefore, must stand, if the analogy is carried out to its legitimate consequences, just as if a suit had been brought, judgment of foreclosure rendered, and a sale made and confirmed, so that the...
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