93 N.C. 227 | N.C. | 1885
The plaintiff's first exception is to the judge's charge that there was no evidence furnished in the two deeds executed by John F. McKee to his sureties, and in the authority afterwards given to them to sell after his attaining full age, of his ratification of indebtedness on the note.
In the first deed, made the same month in which he arrived at majority, this recital is contained: "Whereas said Sharpe and Miller are sureties for the said J. F. McKee on a note payable," etc., describing it accurately.
The second deed, made 31 August, after conveying certain personal property, proceeds thus: "Now, therefore, the parties of the (232) second part" (the assignee's sureties) "shall hold and use all the above conveyed property for the purpose of paying and discharging said note to which they are surety," and adds authority to sell "and apply the proceeds of said sale to the discharge of said note."
The subsequent written direction, bearing date 22 November, 1877, has a provision that "when the note to which they are surety shall be fully paid off and discharged" then what remains, if anything, shall be returned to the mortgagor. Thus the debtor in both deeds recognizes the obligation of the note as resting upon his two sureties, and appropriates his own property to its payment, in order to their relief.
We are not willing to give our consent to the ruling that there is no evidence of ratification of the debt if it were a material element in the cause, but it is rendered unimportant by the subsequent instruction, that as to both the said John F. and the surety Sharpe the debt is barred by the statute. *213
2. The exception to the direction given to the jury as to the effect of the lapse of time, in obstructing the recovery, cannot be sustained.
The note, not being under seal, became due on the day after its date, and then the statute ran its full course, Code, sec. 155, before the alleged payment by Miller on 12 May, 1881, and this payment, being made after the bar had been interposed, cannot operate to revive the obligation and restore the lost remedy against the others, under the ruling in Greenv. Greensboro College,
While there is no error entitling the plaintiff to a new trial as to the three defendants, other than Miller, in so much of the action as seeks to recover upon the note as a subsisting debt, there is error in adjudging that they go without day.
The trust fund is undisposed of, and this the plaintiff has a right to pursue and recover so much as may be applicable to his secured debt, and in the disposition of this fund all of them have, and are admitted to have, a direct interest.
They should therefore remain in the cause until the controversy (233) in relation to it is settled. As to the enforcement of the mortgage to secure it for the discharge of the note, and to the extent of what may be obtained from this source, there is no statutory bar. While the personal action is barred, the action to enforce the mortgage is not, as decided in Capehart v. Dettrick,
There is therefore error in the judgment in favor of the three defendants that they go without day. This will be certified to the court below to the end that further proceedings be had in the Superior Court of Iredell, according to law, as declared in this opinion.
Error. Reversed.
Cited: Overman v. Jackson,