Smith v. Parker

• Decision Date: 09 December 1902
• Citation: 42 S.E. 910,131 N.C. 470
• Parties: SMITH et al. v. PARKER et al.
• Court: North Carolina Supreme Court

42 S.E. 910

131 N.C. 470

SMITH et al.

v.PARKER et al.

Supreme Court of North Carolina.

Dec. 9, 1902.

MORTGAGES—FORECLOSURE—INJUNCTION— RELEASE OF SURETIES.

1. Foreclosure of a mortgage given by sureties will be restrained, they alleging there was an extension of time of payment, without their consent, discharging them and the security, till determination of the question of such extension.

Appeal from superior court, Buncombe county; Moore, Judge.

Action by C. A. Smith and others against Haywood Parker, trustee, and others, to restrain foreclosure of a mortgage. From an order, defendants appeal. Affirmed.

Merrick & Barnard, for appellants.

Thos. A. Jones, for appellees.

CLARK, J. This is an appeal from a refusal to dissolve a restraining order and from granting an injunction to the hearing. It appears in the affidavits of plaintiffs that C. A. Smith, as principal, and A. C. Smith, his wife, and W. D. Justice and Susan P. Justice, his wife, as sureties, executed a bond for $1,500 to the defendant Frances Kohler, and to secure the same executed a deed in trust to the other defendant. Haywood Parker, upon property belonging to the said sureties, —C. A. Smith having no interest in said land except a contingent tenancy by curtesy, —and that defendant Kohler's agent, in making the transaction, well knew that A. C. Smith, W. D. Justice, and Susan P. Justice were sureties; that at maturity of the bond the creditor extended the time for payment for four months in consideration of payment of interest in advance for said period, and this was done without the knowledge or consent of the sureties; that the trustee has advertised the land for sale; that the defendant Frances Kohler is a nonresident of the state, and without sufficient property in this state to respond in damages. There were counter affidavits. An extension of time, without consent of sureties, discharges them, and also any security given for the debt. Flemming v. Borden, 127 N. C. 214, 37 S. E. 219; Jenkins v. Daniel, 125 N. C. 161, 34 S. E. 239, 74 Am. St Rep. 632; Smith v. Association, 119 N. C. 257, 26 S. E. 40; Hinton v. Greenleaf, 113 N. C. 6, 18 S. E. 56. Receipt of interest in advance is prima facie evidence of a binding contract of forbearance. Scott v. Fisher, 110 N. C. 311, 14 S. E. 799, 28 Am. St. Rep. 688; Hollingsworth v. Tomlinson, 108 N. C. 245. 12 S. E. 989. The affidavits and counter affidavits raise a serious contention, and the injunction was properly continued to the hearing, when the disputed matters of fact may be determined by a jury. Railroad Co. v. Aberdeen & W. E. R. Co., 125 N. C. 96, 34 S. E. 197; Whit-taker v. Hill. 96 N. C. 2, 1 S. E. 639. Harrington v. Rawls (at this term) 42 S. E. 461, is conceded by the defendants' counsel to be exactly in point, but they contend that that decision conflicts with Hutaff v. Adrian, 112 N. C. 259, 17 S. E. 78. which, they suggest, must have been overlooked in deciding Harrington v. Rawls. On the contrary, we think the two decisions are in entire accord. In Hutaff v. Adrian (decided Feb. term,...