Harshaw v. McKesson

• Decision Date: 31 January 1872
• Citation: 66 N.C. 266
• Court: North Carolina Supreme Court
• Parties: J. N. HARSHAW et al. Executors of JACOB HARSHAW v. WM. F. MCKESSON, et al.

66 N.C. 266

J. N. HARSHAW et al. Executors of JACOB HARSHAW

v.WM. F. MCKESSON, et al.

Supreme Court of North Carolina.

January Term, 1872.

1. A Court of Equity will never decree a foreclosure of a mortgage until the period limited for payment has expired. It cannot shorten the time given, by express covenant and agreement between the parties, as that would be to alter the nature of the contract to the injury of the party affected.

2. When a mortgage is executed, and it is stipulated that if the mortgagor “shall well and truly pay and discharge said debts according to agreement--the one third part in three years, one third in four years, and the remainder in five years from date, then the said deed to be void;” Held, that said mortgage cannot be foreclosed until the last period mentioned, viz: five years.

3. If the said deed had stipulated that the estate should be forfeited on the failure to pay the specified instalments of debts, then on said failure the mortgagee could have called for his money or proceeded to foreclose.

4. Where a bill to foreclose a mortgage is filed against several defendants, some of whom claim a portion of the lands described in the pleading, under a prior mortgage and they do not ask that the same be sold, Held, that it is error to decree that said mortgaged premises be sold for the benefit of the said defendants.

This was a civil action tried before Mitchell, Judge, at Fall Term, 1871, of Burke Superior Court.

One of the defendants, William F. McKesson, executed a mortgage to plaintiffs' testator, for several tracts of land lying in Burke and the adjacent counties, and a house and lot in the town of Morganton, to secure certain debts mentioned in the said mortgage.

The condition of the mortgage is as follows; viz: “Now, if the said Wm. F. McKesson shall well and truly pay and discharge said several debts according to the agreement now made--the one-third part thereof in three years, one-third part in four years, and the remainder in five years from this date, then this deed to be void and at an end, otherwise to remain in full force and virtue.”“It is understood that if the said McKesson chooses to pay a part of said debts, at any time, it will be received.” Said mortgage deed is dated February 5th, 1867. Registered February 6th, 1867.

The summons in this case were issued February 10th, 1871. Service was accepted by some of the defendants in February, 1871, and process executed on the others shortly thereafter.

There was a prior mortgage of some of the lands included in the mortgage to plaintiff, made to the defendants Woodfin, C. F. McKesson and Annie F. McKesson, since married to defendant Busbee. There was a reference to a commissioner to state an account. A report was made and confirmed by the Court.

The case was heard at the last term of Burke Superior Court, upon the complaint, answers, exhibits, plea and report of commissioner. His Honor rendered judgment that the lands included in plaintiffs' mortgage be sold upon certain terms mentioned in the said judgment, and also that the house and lot in the town of Morganton, and tract of land included in the prior mortgage to the defendants, above named,...