187 N.C. 625
N.C.
1924
*628 Clarkson, J.

Tbe sole question presented is, Did tbe court below commit error in restraining tbe sale?

In Lea v. Johnson, 31 N. C., 19, Pearson, J., said: “ ‘Hard cases are tbe quicksands of tbe law.’ In other words, a judge sometimes looks so mucb at tbe apparent hardship of tbe case as to overlook tbe law.”

In Cureton v. Moore, 55 N. C., 207, it was said: “A court of equity ean no more relieve against ‘bard cases/ unless there be some ground of equity jurisdiction, than a court of law, for both courts act upon general principles. Equity, as well -as law, is a science, and does not depend upon the discretion of tbe court entrusted with equity jurisdiction, or tbe vague ideas that may be entertained as to ‘bard eases.’ ”

In tbe instant case, tbe learned and conscientious judge who beard this casé and granted tbe injunction found as a fact “that tbe props erty sought to be sold under said mortgage is now in controversy, and tbe conveyance of said property from J. L. Armfield to Dion Gr. Arm-field is being attacked by creditors of tbe said J. L. Armfield, and that tbe mortgage indebtedness of Miss Chase Boren is not controverted, and that a sale of said property as advertised on 8 October, 1923, by tbe said mortgagee would be prejudicial to tbe interests of all parties-to tbe action, except Miss Chase Boren, and that tbe security held by her is amply sufficient to cover her debt.”

It nowhere appears in tbe record that Chase Boren consented -to tbe procedure in which she was made a party or waived any right. This being so, from tbe facts found by tbe court below as a matter of law, we think that tbe restraining order ought not to have been granted.

If subsequent judgment creditors or litigants over tbe equity of redemption could “tie up” a first mortgage and effect its terms, it would seriously impair a legal contract. It may be “bard measure” to sell,, but this is universally so. Tbe mortgagee has a right to have her contract enforced under tbe plain terms of tbe mortgage. To bold otherwise would practically nullify tbe present system of mortgages and deeds in trust on land, so generally used to secure indebtedness and seriously hamper business. Those interested in tbe equity of redemption have tbe right of paying off the first lien when due. We can see no equitable ingredient in tbe facts of this case. Tbe mortgage is not a “scrap of paper.” It is a legal contract that tbe parties are bound by. Tbe courts, under their equitable jurisdiction, where tbe amount is due and ascertained — no fraud or mistake, etc., alleged — have no power to impair tbe solemn instrument directly or indirectly by nullifying tbe plain provisions by restraining tbe sale, to be made under tbe terms of tbe mortgage.

Allen, J., in Bonner v. Rodman, 163 N. C., 2, says: “Tbe plaintiff admitted that be owed tbe defendant $436, and it was therefore within tbe power of tbe court, upon tbe facts appearing in this record, to re *629 quire the payment of this sum within a reasonable time before granting equitable relief, upon the familiar principle that he who seeks equity-must do equity, although a case might arise in which the court could refuse to impose such a condition. An order similar to the one appealed from was approved in Pritchard v. Sanderson, 84 N. C., 299.” Story’s Eq. Jurisprudence (14 ed.), sec. 1369.

In Smith v. Connor, 65 Ala., 371, it was said: “When subsequent purchasers or encumbrancers file a bill in equity against the first mortgagee, asking an account and redemption, and not denying that there is a balance due on the mortgage debt, it follows that they ought to make a tender in the bill or offer to pay whatever may be found due.”

The prayer in the plaintiffs’ complaint, recognizes the mortgagee’s rights and the prayer is made “subject to the rights of the defendant Ohase Boren,” etc.

For the reasons given there was

Error.