Fraser v. Bean

• Decision Date: 25 April 1887
• Citation: 2 S.E. 159,96 N.C. 327
• Parties: FRASER and others v. BEAN, Adm'r, and others
• Court: North Carolina Supreme Court

2 S.E. 159

96 N.C. 327

FRASER and others v. BEAN, Adm'r, and others

Supreme Court of North Carolina

April 25, 1887

Appeal from superior court, Burke county.

In equity the mortgagee is regarded merely as holding the legal title as security for the debt, and the equitable estate continues in the mortgagor. On the death of the mortgagor the action to foreclose should be brought against the heirs, and the administrator is not a necessary party.

S. J Ervin, for plaintiffs.

John T Perkins, for defendant.

MERRIMON J.

This action was brought to preclude the mortgage of real property only, made to secure certain debts therein specified mentioned and set forth in the pleadings. This mortgage was executed by Kincaid on the seventeenth of June, 1873, and the forfeiture therein provided for happened on the seventeenth of December of the same year. The mortgagor, next after its execution, remained in possession of the land during his life-time, as did his heirs at law ever afterwards, and no part of the mortgage debt was paid by any person. He died intestate in March of 1883, and the defendant Bean qualified as his administrator in February of 1885. This action was begun on the fourteenth of July, 1885, more than 10 years next after the forfeiture of the mortgage happened. The action is brought against the heirs at law of the mortgagor who plead and rely upon the statute of limitations, (Code, § 152, par. 3,) barring actions on mortgages, the administrator of his estate, and A. J. Corpening, who is alleged to be and is in possession of the land, as it seems, with the heirs at law. The parties waived a jury trial, and the court having found the facts substantially as above stated, and all defenses other than the statute of limitation having been waived by the parties, upon consideration the court gave judgment, of which the following is a copy: "It is considered by the court that as to the heirs at law of the said Archibald Kincaid, and as to A. J. Corpening, the action is barred by the statute of limitations, and that they go hence without day and recover their costs of action; that as to the administrator, W. J. Bean, it is further considered by the court that there is due the plaintiffs from the estate of said Archibald Kincaid the sum of $382.16, of which sum $214.16 is principal, and $168 is interest, with interest on said principal until paid." From which judgment plaintiffs appeal.

In equity the mortgage of the land in question was simply a security for the debt to the mortgagee secured by it. Although the legal title to the land was in the latter, the mortgagor had in his life-time the...