Raper v. Coleman

Decision Date06 October 1926
Docket Number(No. 94.)
Citation134 S.E. 481
CourtNorth Carolina Supreme Court
PartiesRAPER. v. COLEMAN et al.

Appeal from Supreme Court, Johnston County; Sinclair, Judge.

Action by Herm Raper against George S. Coleman and another. Judgment for defendants, and plaintiff appeals. Affirmed.

On November 28, 1923, the defendant Coleman sold and conveyed to the plaintiff 60 acres of land in Johnston county at the agreed price of $15,000. The plaintiff paid $6,000 in cash, and executed and delivered to said Coleman a purchase-money mortgage on the same land for the sum of $9,000, payable at the rate of $1,000 a year for 9 years, the first payment to be made on December 1, 1924, and the last on December 1, 1932. The mortgage, which was duly registered, contained the following foreclosure provision:

"But this deed is made on this special trust: That if said party of the first part shall well and truly pay to said party of the second part, or his legal representatives, the bonds hereinbefore described, at their maturity, then this deed to be null and void. But if default shall be made in the payment of said bonds, or the interest on the same, or any part of either, at maturity, then and in that event it shall be lawful for and the duty of said party of the second part to sell said land hereinbefore described to the highest bidder for cash, at the courthouse door in Johnston county, first advertising said sale, etc. * * * and out of the moneys arising from said sale to pay said bonds and interest on same together with costs of sale."

The plaintiff made the first payment, but failed to meet the second installment of $1,-000, which was due December 1, 1925, and on December 10, 1925, Coleman, as mortgagee, caused the land to be advertised for sale under the mortgage, and at the alleged sale, made January 11, 1926, the defendant Kichardson bid off the land at the price of $8,500. On January 19, 1926, the plaintiff instituted this action and obtained a temporary order restraining Coleman from executing and delivering any conveyance of the mortgaged premises, and thereafter the restraining order was dissolved by Judge Sinclair, whereupon the plaintiff excepted and appealed.

Charles U. Harris, of Raleigh, and Ed. F. Ward, of Smithfield, for appellant.

Paul D. Grady, of Kenly, and Pou & Pou, of Raleigh, for appellees.

ADAMS, J. The appeal raises the question whether, under the clause of defeasance, the mortgagee's right to foreclose accrued upon the mortgagor's failure to pay the bond of $1,000 maturing on the 1st day of December, 1925. The plaintiff, admitting that this is the only question presented by his exception, stresses the point that the mortgagee cannot sell before the date at which the last bond is to become due, while the defendants say that a sale of the mortgaged property is authorized by the terms of the defeasance upon default in the payment of the bonds, or the interest thereon, or upon default in the payment of any part of either at maturity.

As a rule, a court of equity will not decree the foreclosure of a mortgage until the period limited for the payment of the secured debt is past and the estate is forfeited to the mortgagee, for it cannot shorten the time on which the parties have expressly agreed. Harshaw v. McKesson, 66 N. C. 266. Hence, if several bonds maturing at different periods are secured by a mortgage, and there is nothing in the contract, pleadings, or evidence that matures or hastens the maturity of the deferred payments, or any other event which constitutes a default, there is no right of foreclosure, either for the whole debt or for any part of it, until the last bond becomes due; the mortgagee's remedy meantime being a suit to recover judgment for such part of the debt as may have matured, a similar action from time to time as the other installments become due and, if reasonably required for his protection, a suit for the present possession of the mortgaged premises. Walker v. Burrell, 172 N. C. 386, 90 S. E. 425.

This court has also held that, if the parties to the contract stipulate that the estate shall be forfeited, or that the right to sell may be exercised upon the debtor's failure to pay the specified installments of the debts as they mature, then upon the debtor's failure to pay any installment that is due the mortgagee may demand his money or proceed immediately to foreclose. Harshaw v. McKesson, supra.

The cases cited in the brief of the plaintiff fall within the first of these two classes, and do not support the position taken in his argument. Jones v. Boyd, 80 N. C. 258, and Brame v. Swain, 111 N. C. 540, 15 S. E. 938, were suits for the specific performance of contracts to convey land, and while in such cases the relation...

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2 cases
  • Worley Et Ux v. Worley
    • United States
    • North Carolina Supreme Court
    • 19 Octubre 1938
    ...124 N.C. 234, 32 S.E. 554; Sand-erlin v. Cross, 172 N.C. 234, 90 S.E. 213; Miller v. Marriner, 187 N.C. 449, 121 S.E. 770; Raper v. Coleman, 192 N.C. 232, 134 S.E. 481. The power of sale in a mortgage is contractual, and in its exercise the terms and conditions contained in the mortgage mus......
  • Bank of Clinton v. Goldsboro Savings & Trust Co.
    • United States
    • North Carolina Supreme Court
    • 22 Octubre 1930
    ... ... purchased by defendant trustee for $3,500, and deed made to ... it June 17, 1927 ...          In ... Raper v. Coleman, 192 N.C. at page 235, 134 S.E ... 481, 482, speaking to the subject: "Our conclusion is in ... agreement with former decisions of this ... ...

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