190 S.E. 479 | N.C. | 1937
Civil action to foreclose mortgage and to recover damages for injury to mortgaged premises.
The plaintiff holds a mortgage on 35 1/4 acres of land in Macon County, the same having been taken in 1921 as security for a loan of $1000.
In 1928, during the existence and continuance of plaintiff's lien, the mortgagor, Nannie E. Jacobs, conveyed to the town of Franklin an easement in said tract of land to flood and pond water thereon to the extent necessary for the construction of a dam and municipal electric light plant, which said easement was conveyed to Nantahala Power and Light Company in 1933. The power company is now in possession under said easement, and has greatly lessened plaintiff's security by ponding water on a portion of the mortgaged premises.
Two causes of action are set out in the complaint: One to foreclose said mortgage, and the other to recover damages for injury to the mortgaged premises.
There was judgment by default and order of foreclosure on the first cause of action, from which no appeal has been taken.
During the trial, upon intimation from the court that the cause of action for damages against the town of Franklin and the Nantahala Power and Light Company had not accrued and would not accrue prior to foreclosure with resultant deficiency, plaintiff suffered a nonsuit as to its second cause of action, and appeals. Can a mortgagee, after default and before foreclosure, maintain an action for trespass against one who has tortiously injured the mortgaged estate? The answer is, "Yes."
At the time of ponding water on the mortgaged premises, the plaintiff, as mortgagee after default, was entitled to possession. Weathersbee v.Goodwin,
Nothing was said in Watkins v. Mfg. Co.,
The joinder of the two causes of action in the same complaint is sustained by what was said in Carswell v. Talley,
We are not now concerned with whether the plaintiff can make out its case or with the extent of its right of recovery. These are matters which will arise on the hearing. It is observed that both the mortgagee and mortgagor, as was the case in Stevens v. Smathers, supra, are parties to the action.
Reversed.