Worley Et Ux v. Worley

• Decision Date: 19 October 1938
• Docket Number: No. 246.,246.
• Citation: 199 S.E. 82,214 N.C. 311
• Parties: WORLEY et ux. v. WORLEY.
• Court: North Carolina Supreme Court

199 S.E. 82

214 N.C. 311

WORLEY et ux.

v.WORLEY.

No. 246.

Supreme Court of North Carolina.

Oct. 19, 1938.

Appeal from Superior Court, Johnston County; W. C. Harris, Judge.

Action by George Worley and wife, Hazel Worley, against A. K. Worley, for damages for wrongful advertisement of plaintiffs' land in an attempted mortgage foreclosure. From a judgment on a verdict for plaintiffs, defendant appeals.

No error.

Action to recover damages for wrongful advertisement of plaintiffs' land in attempted foreclosure of defendant's mortgage.

Issues submitted to the jury were answered in favor of the plaintiffs and damages assessed in the sum of $200. From judgment on the verdict defendant appealed.

Parker & Lee, of Smithfield, for appellant.

A. M. Noble, of Smithfield, for appellees.

DEVIN, Justice.

Appellant's principal assignment of error relates to the court's instruction to the jury that at the time of the advertisement there had been no default in the payment of the notes secured by defendant's mortgage.

It was admitted that on 21 May, 1935, plaintiffs for value executed and delivered to defendant four notes, each in the sum of $60, due respectively 1st days of November, 1936, to 1939, inclusive, and at the same time to secure said notes executed a mortgage on described land. It was provided in the mortgage that "if default be made in the payment of said bonds or the interest on same, or any part of either at maturity, " it should be lawful for the mortgagee to sell said land after due advertisement. The first note is in words and figures following: "$60.00. On or before November 1st, 1936, with interest from date at 6% per annum, we promise to pay to the order of A. K. Worley, Sixty and No/100 Dollars, for value received. Interest due and payable annually. George Worley (Seal). Hazel Worley (Seal)."

It was admitted that no interest was paid at the end of one year from the date of execution of the notes, and that on 5 June, 1936, defendant advertised the land for sale under the power contained in the mortgage. Sale was enjoined, and thenotes eventually paid in full. This action is to recover damages for losses sustained by plaintiffs on account of the premature and unlawful advertisement of their land.

The question arises, did the defendant have the right to institute foreclosure proceedings upon failure of plaintiffs to pay interest on 21 May, 1936? If not, a cause of action would lie and plaintiffs be entitled to recover for injuries proximately resulting.

It has been uniformly held that where the mortgage authorizes a sale upon failure to pay the notes or bonds secured, or the interest thereon, or any part of cither at maturity, the mortgagee has the right to foreclose upon failure of payment, of any installment of interest when due, and that it is not essential to the power of sale that all the notes be due. Capehart v. Dettrick, 91 N.C. 344; Kitchin v. Grandy, 101 N.C. 86, 7 S.E. 663; Gore v. Davis, 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...