Gore v. Davis

• Decision Date: 21 March 1899
• Citation: 124 N.C. 234,32 S.E. 554
• Court: North Carolina Supreme Court
• Parties: GORE. v. DAVIS.

32 S.E. 554

(124 N.C. 234)

GORE.

v.DAVIS.

Supreme Court of North Carolina.

March 21, 1899.

Mortgage Foreclosure—Time to Answer— Judgment.

1. Where a mortgage authorized foreclosure on default in payment of semiannual interest provided for, a foreclosure suit brought after default, in payment of the first interest installment, before maturity of the note, is not premature.

2. Refusal to grant a defendant further time to answer after the expiration of the term, on overruling his demurrer to the complaint, is. under Code, § 274, within the discretion of the court.

3. A judgment of foreclosure, failing to state what sum is adjudged to be due, is not sufficiently specific, and should be reformed before foreclosure is directed.

Appeal from superior court, New Hanover county; Timberlake, Judge.

Action by D. L. Gore against Rachal Davis for the foreclosure of a mortgage. From a judgment for plaintiff, defendant appeals. Modified.

Iredell Meares, for appellant

John H. Gore, Jr., for appellee.

CLARK, J. The note sued on was dated 19th October, 1897, and payable three years after date, but the interest was made "due and payable semiannually." The mortgage to secure the note specified: "If default shall be made in payment of said bond, or the interest on the same, or any part of either, at maturity, " the creditor could proceed to sell the land, and out of proceeds of sale "pay said bond and interest on the same." The defendant failed to pay the interest which fell due 19th April, 1898. By the conditions of the mortgage the principal and interest became due. The demurrer of the defendant, that this action for judgment on the note and foreclosure of the mortgage was premature, was properly overruled. Capehart v. Det-trick, 91 N. C. 344; Kitchin v. Grandy, 101 N. C. 86, 7 S. E. 663; Whitehead v. Morrill, 108 N. C. 65, 12 S. E. 894; Kiger v. Harmon. 113 N. C. 406, 18 S. E. 515; Barbee v. Scog-gins, 121 N. C. 135, 28 S. E. 259. Nor is ademand or refusal to pay necessary before beginning an action of this nature.

Upon overruling the demurrer, the defendant was entitled to answer at that term (Code, § 272), but the refusal of further time to answer was in the discretion of the trial judge (Code, § 274). The defendant having failed to answer, and the complaint being verified, the court rendered judgment that if $3,000 (the principal of said note), and interest and costs, were not paid within the time specified in the judgment, the mortgaged premises should be sold after due...