Mebane v. Mebane

• Decision Date: 31 January 1879
• Citation: 80 N.C. 34
• Court: North Carolina Supreme Court
• Parties: MARTHA C. MEBANE v. MARIA A. MEBANE.

80 N.C. 34

MARTHA C. MEBANE

v.MARIA A. MEBANE.

Supreme Court of North Carolina.

January Term, 1879.

MOTION to set aside a judgment heard at Fall Term, 1878, of NEW HANOVER Superior Court, before McKoy, J.

This action is brought for the foreclosure of a mortgage and the sale of the land conveyed, by summons returnable to April term, 1878, of the superior court of New Hanover county. The complaint was filed at that term and the defendant appeared by counsel, but no answer was put in and the cause was continued without further action. At June term following under an order of reference then made, the clerk reported the amount of mortgage debt and the judgment was entered up, from the order setting aside which in the court below the appeal is taken. The judgment was prepared by plaintiff's counsel, exhibited for examination to the defendant's counsel, and he making no objection, it was handed to the judge and signed by him. The judgment declares to be due the plaintiff the sum of $9,589.06 principal and accrued interest on the secured debt, and orders and decrees “that the defendant shall stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to, the said mortgaged premises,” and directs the clerk to proceed to advertise and sell the land, the plaintiff being allowed to bid and become purchaser at the sale, and from its proceeds pay the debt and costs of suit.

Under this order the land was sold to the plaintiff for $3,000, and without report, confirmation, or other order, conveyed by the commissioner to her. At fall term, 1878, the defendant by her verified petition applied to the court and moved that the judgment rendered at June term be set aside and vacated and for leave to put in an answer. Upon the hearing of the motion the following facts are found by the judge:

The defendant's counsel had no conference with her previous to the entering up the judgment and was not informed of the nature of her defence. He had called to see her on the subject but owing to her illness the interview did not take place. Between April and June terms the counsel was absent from the city (Wilmington) at different times, in all about three weeks, and during the interval the defendant made repeated but unsuccessful efforts to see him and advise him of her defence. The action is between parties whose husbands were brothers, and the counsel hearing that the defendant relied upon her legal incapacity while under coverture to make a valid conveyance of her separate estate to secure debts not her own but her husband's, which he deemed untenable, and inferring from the relationship subsisting between them that the subject matter was understood, made no opposition to the judgment. Conversations had occurred in presence of defendant calculated to mislead her into the belief that the debt secured was for $1000 only, and that without reading or hearing the deed read, she executed it under that belief. The defendant had frequently visited the plaintiff at her house, but neither by her nor her husband was she undeceived as to the true terms of the mortgage. After June term the defendant learned the real facts of the case and employed other counsel to seek relief by injunction, but refrained from suing out the writ, on the assurance of the plaintiff's counsel that no objection would be made to an order setting aside the judgment on defendant's paying the costs. The plaintiff, however, proceeded to have the land sold and became herself the purchaser. The judge finds further that the defendant has a meretorious defence to the action. Upon these facts the judgment was vacated with the proceedings consequent thereon, and from this order the plaintiff appealed.Messrs. A. T. & J. London, for the plaintiff .

Mr. E. G. Haywood, for the defendant .

SMITH, C. J. (After stating the case as above.)

The mortgage on its face shows the debt to be that of the husband alone, and for which the defendant was in no manner liable, and contains a clause vesting, on the debtor's default, a power of sale in the mortgagee. The aid of this court, while not necessary for the plaintiff's relief, is nevertheless invoked to give effect to this provision. In directing and controlling the exercise of the power, the court will be guided by those rules of equitable proceedings not inconsistent with the deed, which are observed in decrees of foreclosure and sale of property conveyed in mortgages without such power. The judgment in this case does not conform to those rules.

1. The foreclosure is absolute and no time is allowed the mortgagor to pay the debt and redeem: This is not in accordance with the established practice in courts of equity. “The usual course pursued on foreclosure,” says an eminent writer on the law of mortgages, “is for the mortgagee to file his bill praying that an account may be taken of principal and interest, and that the defendant may be decreed to pay the same with costs by a short day to be appointed by the court, and in default thereof he may be foreclosed his equity of redemption,” and this time is usually six calendar months. Coot's Law of Mortgages, 492.

In Clark v. Reynolds, 8 Wallace, 318, a bill for foreclosure was filed in the circuit court of the United States for the district of Kansas, and a decree was entered giving no time to pay and redeem, and making the foreclosure unconditional and absolute at once. In delivering the opinion in the supreme court, Mr. Justice SWAYNE says: “The settled English practice is for the decree to order the amount due to be ascertained and the costs to be taxed, and that upon the payment of both within six months the plaintiff shall reconvey to the defendant, but in default of payment within the time limited, that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises. We have been unable to find any English case where in the absence of fraud, a time for redemption was not allowed.” And he adds: “In the light of these authorities we are constrained to hold the decree in the case before us fatally defective.” The judgment under consideration is in almost identical words and falls under like condemnation. So in this state, PEARSON, C. J., says: “The decree of sale is always after reasonable notice of the decree, say three months, in order to give the mortgagor an opportunity to raise the money and prevent a sale.” Capehart v. Biggs, 77 N. C., 261.

2. No report of the sale is required to be made to the court in order that it may be set aside or confirmed, and title...