Gore v. . Davis

32 S.E. 554 | N.C. | 1899

Demurrer filed. Overruled. No answer. Judgment. Exception and appeal. The case is sufficiently stated in the opinion. The note sued on was dated 19 October, 1897, and payable (235) three years after date, but the interest was made "due and payable semiannually." The mortgage to secure the note specified, "if default shall be made in payment of said bond or the interest on the same, or any part of either at maturity," the creditor could proceed to sell the land and out of proceeds of sale "pay said bond and interest on the same." The defendant failed to pay the interest which fell due 19 April, 1898. By the conditions of the mortgage, the principal and interest became due. The demurrer of the defendant, that this action for judgment on the note and foreclosure of the mortgage was premature, was properly overruled. Capehart v. Dettrick, 91 N.C. 344; Kitchin v. Grandy,101 N.C. 86; Whitehead v. Morrill, 108 N.C. 65; Kiger v. Harmon,113 N.C. 406; Barbee v. Scoggins, 121 N.C. 135. Nor is a demand or refusal to pay necessary before beginning an action of this nature.

Upon overruling the demurrer, the defendant was entitled to answer at that term (The Code, sec. 272), but the refusal of further time to answer was in the discretion of the trial judge. The Code, sec. 274. The defendant having failed to answer, and the complaint being verified, the court rendered judgment that if $3,000 (the principal of said note) and interest and costs were not paid within the time specified in the judgment, the mortgaged premises should be sold, after due advertisement, and judgment against the defendant for any deficiency, after applying the proceeds of said sale to the satisfaction of the judgment. The judgment is loosely and inartificially drawn. There is no sum adjudged to the due by the defendant to the plaintiff, which should be done before a foreclosure is directed. It may be inferred, upon the maxim, id certumest quod certum reddi protest. The judgment should be reformed by the court below to accord with the established form in such cases. This loose practice cannot be encouraged, and the costs of this Court will be divided between the parties. The Code. sec. 527. With this (236) modification, the judgment below is affirmed.

MODIFIED AND AFFIRMED.

Cited: Perry v. Comrs., 130 N.C. 561; Hinton v. Jones, 136 N.C. 57;Bizzell v. Roberts, 156 N.C. 274; Eubanks v. Becton, 158 N.C. 233;Sanderlin v. Cross, 172 N.C. 240.