Hill v. Hilliard

• Decision Date: 11 May 1889
• Court: North Carolina Supreme Court
• Parties: Hill v. Hilliard et al.

9 S.E. 639

(103 N.C. 34)

Hill

v.Hilliard et al.

Supreme Court of North Carolina.

May 11, 1889.

Limitation of Actions.

1. That a creditor indulges the debtor at his "special request, " having confidence in his integrity, and without apprehension that the debtor will set up the statute of limitations, will not suspend the running of the statute.

2. On mortgage foreclosure the statute is available to a subsequent mortgagee, though the mortgagor declines to plead it.

Appeal from superior court, Halifax county; James C. MacHae, Judge.

The following are agreed upon as the facts in this controversy: (1) That on the 3d day of March, 1876, the defendant James L. Ous-by executed to Maria J. Lowe a mortgage in fee, which was duly registered, on two lots near the town of Halifax, numbered 8 and 9, to secure three notes, all then past due, upon condition that, if Ousby should pay said notes by January 1, 1877, said mortgage deed should be void, and with power of sale in case of default. (2) That on the 5th day of April, 1886, Ousby mortgaged the lots, along with other real and personal property, in fee to the defendant Louis Hilliard to secure a debt of $1,124.35, due 10 months thereafter, with 8 per cent, interest after maturity, which deed was duly registered. There is still due on this mortgage debt $962.52, with 8 per cent, interest from 1st day of March, 1888. All the personal property embraced therein has been'subjected thereto, and the real estate, outside of lots 8 and 9, is insufficient to pay said debt. (3) That nothing has ever been paid on the Maria J. Lowe notes or mortgage debt. (4) That Maria J. Lowe died domiciled in Halifax county in the year 1881, leaving a last will and testament, and on the 28th day of March, 1882, R. E. Mose-ley qualitied as her administrator with the will annexed. On the 3d day of July, 1882, said Moseley having died, the plaintiff, Thomas N. Hill, duly qualified as administrator de bonis non with the will annexed, on said estate. (5) That Louis Hilliard & Co. had actual notice of the M. J. Lowe mortgage at the time of accepting the mortgage to them. (6) That Thomas N. Hill never had any actual notice of the mortgage to Louis Hilliard & Co. (save such notice as registration confers) till the latter part of January or first of February, 1888. (7) That Hill did not sue upon or foreclose the M. J. Lowe mortgage prior to January 1, 1887, because he was requested to indulge the same by said Ousby, and he did indulge him at his special request. Hill having great confidence in the integrity of Ousby, and Ousby being in straitened circumstances, Hill indulged him without apprehension that he would set up the statutory bar as a defense, or endeavor by any means to prevent his collecting said notes and Ousby has made no effort to prevent such collection. (8) That Ousby is now, and has been since the execution of the mortgages to the said Lowe and Hilliard & Co., in possession of lots 8 and 9. Under these facts the question whether the M. J. Lowa mortgage is barred by the statute of limitation as against Louis Hilliard & Co., and who plead the same, is submitted for the decision of the court. The court, being of the opinion that the statute of limitations was a plea not favored, and that it was a personal privilege of the defendant Ousby, and could not be set up by the second mortgagee, Hilliard, gave judgment for plaintiff, from which defendants Hilliard & Co. appeal.

R. O. Burton, Jr., for appellants. A. J. Burton and Batchelor & Decereux, for appellee.

Shepherd, J. This action was commenced on the 23d of February, 1888, —11 years after the forfeiture of the plaintiff's mortgage, —and the mortgagor has been in possession of lots Nos. 3, 8, and 9 during this whole period, and has made no payment. About nine years after...