Hemphill v. Ross

• Decision Date: 31 January 1872
• Citation: 66 N.C. 477
• Court: North Carolina Supreme Court
• Parties: THOMAS L. HEMPHILL and wife et al. v. BENJAMIN A. ROSS.

66 N.C. 477

THOMAS L. HEMPHILL and wife et al.

v.BENJAMIN A. ROSS.

Supreme Court of North Carolina.

January Term, 1872.

1. Upon the execution of a mortgage, the mortgagor becomes the equitable and the mortagee the legal owner, and this relative situation remains until the mortgage is redeemed or foreclosed.

2. Until the day of redemption be past, the mortgagor has a legal right, and after, an equity of redemption.

3. A mortgagor allowed to remain in possession by the long acquiesence and implied approval of the mortgagee, is not a trespasser but a permissive occupant, and as such is entitled to reasonable demand to terminate the implied license before an action can be brought to recover possession.

4. A purchaser of the mortgagor's estate under execution and (where he has leased,) his lessee are entitled to the right of the mortgagor.

The cases of McKesson v. Harshaw, 65 N. C. 688. Harshaw's ex'trs v. McKesson, at this term, and Hemphill v. Giles at this term, cited and approved.

This was a civil action tried at Fall Term, 1871, of Burke Superior Court, befo??te His Honor Judge Mitchell and a jury.

The action was brought to recover possession of land, and the following facts were developed on the trial:

That one W. F. McKesson formerly owned the land, and on the 5th day of February, 1869, conveyed the same to one Jacob Harshaw, to secure certain notes given for money lent by said Harshaw.

The money secured to be paid by the mortgage was to be paid by the terms of the mortgage in instalments of 3, 4 and 5 years. No payment had been made on any of the notes so secured. Harshaw was dead and the plaintiffs are the devisees of his interest in the mortgaged property.

It was also in evidence that W. F. McKesson had been allowed by the mortgagee to remain in possession, and that his estate had ??heen sold at execution sale and purchased by C. F. McKesson, who had leased the premises to the defendant, and that the defendant had not received any notice to quit, and no demand for possession had been made on him.

There were other matters shown, but not material to a correct understanding of the case.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

Battle & Sons for plaintiffs .

Busbee & Busbee, Folk and Armfield for defendant .

I. Both mortgage and covenants contain a stipulation that in case the motgage money was paid in three, four and five years in equal installments, no suit was to be brought either for the land or??for the debt. Now this is equivalent to a proviso that the mortgagor shall enjoy the land from the delivery of the mortgage, and covenant until the expiration of five years, and constituted the mortgagor tenant for years to the mortgagee. It was such a vested legal interest as might be sold by the mortgagor, at his death would have vested in his executors administrators, which consequently passed to C. F. McKesson, by virtue of the execution sale and sheriff deed. 1 Gr. Cruise, 572; Powslay v. Blackman, Cro. Jac. 659. Coote on Mort. 327, 360.

DICK, J.

The mortgage executed by W. F. McKesson, to Jacob Harshaw has given rise to much litigation, which might have been avoided, if the terms of the mortgage had been more explicit, or the parties had better understood their relative legal and equitable rights.

Upon the execution of a mortgage the motgagor becomes the the equitable owner of the lands, and this relative situation remains until the land is redeemed, or the mortgage is foreclosed. Until the day of redemption is passed the mortgagor has no special equity, but ...