Frye v. Crooks

258 N.C. 199 | N.C. | 1962

Higgins, J.

The defendant attempted to interpose two defenses to the plaintiff’s cause of action: (1) The debt secured by the mortgage was not in default; consequently the sale was premature, unauthorized, and the plaintiff's deed void. (2) The action should be abated on the ground there is another action pending between the same parties involving the same subject.

The note, dated August 26, 1955, specifically provided for the payment of $725.00 and interest 12 months after date. The note refers to the security “by real estate of even date.” The mortgage was not drawn with legal precision and exactness. Nevertheless it is dated August 26, 1955. It conveys to the payees in the note the property specifically described, as security for "certain bond bearing even date herewith. . . . These presents and the said bond shall determine and be void” upon the express condition of payment. “But in case of non-payment of the said sum of $725.00 SEVEN HUNDRED TWENTY-FIVE DOLLARS with interest the parties of the second part, their heirs, executors, administrators, or assigns are empowered to sell at public auction to the highest bidder and to execute title .to the purchaser. . . . After applying the proceeds to . . . said debt and interest, rendering the overplus monies, if any, to the said party of the first part. . .”

The cross references in the note and in the mortgage, each to the other, sufficiently show the note was due 12 months after August 26, 1955, and that the mortgage was intended to secure the note. Both the note and the mortgage were under seal, properly executed, and the mortgage properly registered. The defendant’s contention the sale was premature is not substantiated by the record.

The other action pending referred to in -the defendant’s further answer seems to be a motion to set aside the sale. The defendant makes the allegation. She offers nothing to support it. The evidence amply supports the verdict and judgment.

No error.