45 N.C. 192 | N.C. | 1853
The answer of George J. Ward admits "that the bond and mortgage mentioned in complainant's bill bear the signature of his father, the late Richard Ward, but this defendant has been informed, and believes, that the said signatures were obtained by fraud and imposition practiced upon the said Richard Ward while in a state of intoxication," c.
No other allegations are material to the understanding of the opinion of this Court.
At Spring Term, 1853, the cause was set for hearing on the bill, answer and proofs, and transmitted to the Supreme Court. The bill is filed by a mortgagee to foreclose an equity of redemption, or for the sale of the premises. The statements of the bill and those of the answer show a (195) clear original right to the relief sought. The answer, however, insists upon the length of time which elapsed *173 since the execution of the mortgage deed, and also upon the alleged drunkenness of the mortgagor at the time of the execution of the mortgage deed. If this latter defence had been so stated in the answer as to amount to a defence, it is entirely unsupported by any proof. As to the first, it cannot avail the defendant. The bond given to secure the money mentioned in the mortgage did not fall due until 1843, and the bill was filed in 1846.
The principal defence relied on however, is the alleged want of parties. It is insisted that the personal representative of Richard Ward ought to be a party. The answer is, there is no relief prayed against the personal estate. The prayer is for a foreclosure in the ordinary way, but the plaintiff submits to a sale of the land itself, if the Court thinks proper so to decree. In a case of mortgage, in discharging the debt, the most convenient course for both parties is primarily to have the land itself sold, giving to the debtor any surplus that may remain; and this rule is acted upon in this State. Ingram v. Smith,
PER CURIAM. Decree accordingly.
Cited: Ferguson v. Hass,
(196)
