Simmons v. Ballard

• Decision Date: 22 April 1889
• Citation: 9 S.E. 495,102 N.C. 105
• Parties: SIMMONS v. BALLARD.
• Court: North Carolina Supreme Court

9 S.E. 495

102 N.C. 105

SIMMONS v. BALLARD.

Supreme Court of North Carolina

April 22, 1889

Appeal from superior court, Pitt county; MERRIMON, Judge.

Latham & Skinner and C. M. Bernard, for appellant.

SMITH C.J.

This action was begun on August 30, 1883, and the plaintiff alleges that on November 22, 1856, he borrowed of the defendant the sum of $75, and to secure the same executed to the defendant a deed of mortgage conveying a tract of land of about 184 acres, therein described, with condition of avoidance upon payment of said debt and interest on or before January 1, 1858. That previous to the last-mentioned day he made payments which reduced the debt to a sum less than $30 and in the year 1863 or 1864 tendered the residue, and demanded a reconveyance of the premises, which the defendant refused; and that there is a cloud resting upon the title. The prayer is for an account to be taken in order to ascertain what is due under the mortgage, and for a reconveyance to the plaintiff upon his payment thereof. The defendant, answering, admits the borrowing, and the making of the mortgage, as alleged, and says further: That there were other than the secured debts due him, of which he annexed a memorandum, and that sums of money have been paid him without any direction as to their application, and he has appropriated the moneys received to his unsecured debts outside of the mortgage; that during the late civil war, and near its close, the plaintiff offered to make payment in Confederate currency, then become well-nigh worthless, which was not accepted, but never tendered money of value; that when the mortgage was made there was on the premises a small piece of cleared land,--one or two acres,--of which the defendant took possession and cultivated it for several years, and until the fence fell into decay, and that since 1856 he has listed and paid taxes on the land as his own. The defendant relies as a defense to the action upon the statutory presumption of an abandonment of the right to redeem, and in bar of the action; and, if this be not available, that the plaintiff be required to pay, besides the residue of the mortgage debt, the taxes paid, with interest and the entire outside indebtedness due by the plaintiff. After many continuances, the cause came on for trial at spring term, 1888, of Pitt superior court before a jury upon these issues: "(1) What sum, if any, is due from plaintiff to defendant? (2) Has the plaintiff abandoned his equity of redemption?" The evidence developed at the hearing on the part of the plaintiff--of which so much only is stated as bears upon the ruling brought up for review--was, in substance, that after the making of the mortgage, which contains no power of sale, he cultivated the cleared field of one or two acres, before the war, and was the last one who did so; that he left it and moved upon adjoining land, which his wife's father gave her to reside on, and tended it after his removal. It does not appear from this testimony that the land has been in possession of either party since. The only evidence of an appropriated payment on the mortgage debt is the defendant's acknowledgment, bearing date February 6 1857, of $20 "in part payment of a right I hold on his property." At this stage of the case, and upon this showing, the court intimated to counsel an opinion that the facts proved were not sufficient to rebut the presumption of the abandonment of the equity of redemption, raised by section 19, c. 65, of the Revised Code, which governed the case; whereupon counsel for the plaintiff, in submission thereto, suffered a nonsuit, and appealed.

The sole question presented by the record is whether the lapse of the statutory period of 10 years since the last occupation of the mortgaged land, there being no possession since by the defendant, is a bar, from a presumed abandonment, to the assertion of all equitable right to redeem. The court holds the affirmative, and in this, we think, there is error. The parties to a mortgage have each an equitable right therein the mortgagor to redeem on payment of the debt secured, the mortgagee to foreclose if the debt, after default, is not paid; and these respective interests may be lost by inaction and delay. When the land is in the possession of neither, the title remains undisturbed as fixed in the deed of mortgage, and the statutory presumption does not arise to the prejudice of either. The mere lapse of time, unaccompanied by any possession, neither obstructs the right to redeem nor the right to foreclose, and, if a bar to one, so would it be to the other; and the neutralizing effect would be to leave the mortgage in its original force, with the legal incidents attaching thereto. Any other construction of the act would take away its efficiency as a measure of repose, if it did not render it meaningless and inoperative. Such is not its interpretation by the courts. Its true operation is to quiet a possession held by the mortgagee for the...