131 S.E. 383 | N.C. | 1926
On 2 December, 1909, S. J. Taylor, for value, executed and delivered to the plaintiff his note, under seal, for the sum of $110, and, at the same time, executed a mortgage deed on a tract of land in Robeson County, containing 66 acres, more or less, for the purpose of *102 securing the payment of said note. Thereafter, to wit, on 10 June, 1911, S. J. Taylor conveyed the mortgaged lands to George B. McLeod, who, in turn, on 11 March, 1913, conveyed the premises to the defendant, Butters Lumber Company. S. J. Taylor, maker of the note and mortgage, died on 26 December, 1914, and, on 31 May, 1924, the defendant Rexford Stephens, was appointed administrator of his estate. This action was instituted on 17 July, 1924.
There are only two questions involved in this appeal: (1) Is the action as to the defendant administrator barred? (2) Is the right of the foreclosure of the mortgage deed barred? We do not think the action on the debt barred, and the mortgage is an incident to the debt and is not barred. There is a difference in the statute between creditor and debtor.
C.S., 412, in part, is as follows:
If a person — a creditor — one who has claim on another — "entitled to bring an action died before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death," etc.
In Lowder v. Hathcock,
The enabling statute giving one year to the representatives of the creditor does not apply if the creditor died after the bar of the statute was complete.
Under C.S., 412, supra, if a person is a debtor, one who owes another, the statute says: "If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, provided the letters are issued within ten years of the death of such person."
Benson v. Bennett,
In Geitner v. Jones,
The facts in the present case: S. J. Taylor, the debtor, executed a note under seal, secured by mortgage on certain land to plaintiff W. H. Humphrey, the creditor, on 2 December, 1909. The 10-year statute would have barred the note under seal, if Taylor had lived, on 2 December, 1919 (according to the record it was due the day it was made). He died on 26 December, 1914 and within 10 years as set forth in the statute — on 31 May, 1924, the defendant, Rexford Stephens, was appointed administrator of his estate. This action was instituted 17 July, 1924. According to the enabling statute, exclude the time between death of the debtor, S. J. Taylor, 26 December, 1914, and the administration on his estate within 10 years of his death, 31 May, 1924, the note being under seal is not barred. Is the right of foreclosure of the mortgage barred by the 10-year statute of limitation? The Geitner case, supra, decides it is not.
C.S., 437 (3), (period prescribed 10 years in which to bring action), quoted in Geitner case, supra, is as follows: "For the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, within ten years after the forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the lastpayment on the same." The above is Revisal, 391 (3) and section 152 (3) of The Code, 1883, vol. 1, and is construed by H. G. Connor, J., in Menzel v.Hinton,
C.S., 2589, is as follows: "The power of sale of real property contained in any mortgage or deed of trust for the benefit of creditors shall become inoperative, and no person shall execute any such power, when an action to foreclose such mortgage or deed of trust for the benefit of creditors would be barred by the statute of limitations." Revisal, sec. 1044, had the additional: "Wherever an action to foreclose any such mortgage or deed of trust is now barred by the statute of limitations, the authority to execute the power of sale contained therein shall be barred on the first day of January, one thousand nine hundred and seven." This act was passed to bar the power of sale and meet the decisions in the Menzel
and Cone cases, supra. Scott v. Lumber Co.,
When a debt is secured by a mortgage, the debt is the principal and the mortgage only the incident, security for the debt. An assignment of the debt passes all the rights of the creditor in the mortgage. Hyman v.Devereux,
"In House v. Parker,
"If a mortgage is a mere incident to the debt which it is given to secure, it necessarily follows that it lives as long as the debt, and that it may be foreclosed so long as an action upon the debt is not barred by *105
the statute of limitations." Menzel v. Hinton,
Public Laws 1923, chap. 192, material part, is as follows: "That the conditions of every mortgage, deed of trust, or other instrument securing the payment of money shall be conclusively presumed to have been complied with or the debt secured thereby paid as against creditors or purchasers for a valuable consideration from the trustor, mortgagor, or grantor, from and after the expiration of fifteen years from the date when the conditions of such instrument by the terms thereof are due to have been complied with, or the maturity of the last installment of debt or interest secured thereby, unless the holder of the indebtedness secured by such instrument or partly secured by any provision thereof shall file an affidavit with the register of deeds of the county where such instrument is registered," etc.
In Hicks v. Kearney,
For the reasons given, the judgment below is
Affirmed.