Smith v. Parker.
42 S.E. 910
N.C.
1902
Check Treatment
Clark, J.

This is аn appeal from a refusal to' dissolve a restraining order, and from granting an injunction to the hearing. It appears in the affidavit of plаintiffs that C. A. Smith, as principal, and A. C. Smith, his wife, and W. D. Justice and Susan P. Justice, his wife, as sureties, executed a bond for $1,500 to the defendant Prances Kohler, and tо secure the same, executed a deed in trust to the other defеndant, Haywood Parker, upon property belonging to the said suretiеs', C. A. Smith having no interest in said land except a contingent tenancy by curtesy, and that defendant Kohler’s agent, in making the transaction, well knew that A. C. Smith, *471 W. D. Justiсe and Susan P. Justice were sureties, that at maturity of the bond the creditor extended the time for payment for four months, in consideration of payment of interest in advance for said period, and tbis was done withоut the knowledge ‍‌​‌​‌‌‌​‌​​‌‌‌​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​​​​​​​‌‌​​​‍or consent of the sureties'; that the trustee has advеrtised the land for sale; that the defendant Frances Nobler is a non-rеsident of the State, and without sufficient property in tbis State to respond in damages. There were counter affidavits.

An extension of time without consent of sureties, discharges them, and also any security given for the debt. Fleming v. Barden, 127 N. C., 214; 53 L. R. A., 316; Jenkins v. David, 125 N. C., 161; 74 Am. St. Rep., 632; Smith v. B. and L. Asso., 119 N. C., 257; Hinton v. Greenleaf, 113 N. C., 6. Receipt of interest in advance is prima facie evidence of a binding contract of forbearance. Scott v. Fisher, 110 N. C., 311; 28 Am. St. Rep., 688; Hollingsworth v. Tomlinson, 108 N. C., 245. The affidavits and counteaffidavits raise a serious contention, and the injunction was properly ‍‌​‌​‌‌‌​‌​​‌‌‌​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​​​​​​​‌‌​​​‍continued to the bearing, when the disputеd matters of fact may be determined by a jury. Railroad v. Railroad, 125 N. C., 96; Whitaker v. Hill, 96 N. C., 2.

Harrington v. Rawls, at this term, is conceded by the defendant’s counsel to be exactly in point, but they contend that thаt decision conflicts with Hutaff v. Adrian, 112 N. C., 259, which, they suggest, must have ‍‌​‌​‌‌‌​‌​​‌‌‌​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​​​​​​​‌‌​​​‍been overlooked in deciding Harrington v. Rawls. On the contrary, we think the two decisions are in entire accоrd. In Hutaff v. Adrian (decided February Team, 1893), it was said that, taking the allegations of the сomplaint as true, the defendant’s bond and mortgage were barred by thе statute of limitations, hence the ‍‌​‌​‌‌‌​‌​​‌‌‌​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​​​​​​​‌‌​​​‍purchaser at a mortgage sale would get no title, for the mortgage was dead, which is a question of lаw, and the plaintiff being in possession, no injunction would lie merely to pre *472 vent such cloud upon title, though it would lie if there were a dispute as tо the amount due, which is an issue for a jury, in order to prevent a sale which would put the mortgagor at a serious disadvantage, since he did not knоw how much was due.

Soon after that decision, the enactment of сhapter 6, Laws 1893, reversed the above doctrine to the extent оf allowing parties ‍‌​‌​‌‌‌​‌​​‌‌‌​​​​‌​‌​‌‌‌​‌​‌​‌‌‌​‌‌​​​​​​​‌‌​​​‍in possession to restrain a sale of land under an alleged lien pending in an action to have it declared invalid. Mortgage Co. v. Long, 113 N. C., 127. Bеsides, independent of that statute, here there is a disputed issue of fаct, whether the mortgage has been released by an extension of time to the principal, and this should be determined by a jury, for this makes a dispute whether anything is due, which, it was said in Hutaff v. Adrian, would authorize an injunction to the hearing. Jones v. Buxton, 121 N. C., 285. It would be a hardship upon the mortgagor to compel him to rely upon an extraneous fact like a release being established after I sale under a mortgage in an action of ejectment by a purchaser, when, by an injunction to the hearing, the disputed issue of fact can be determined before a sale. Such injunction can not harm the mortgagee, who, if he succeeds, will sеll and collect the debt with interest added; whereas, if no injunction is allоwed, and the disputed issue of release can only be determined after sale, the mortgagor will be either forced to pay the debt or run the risk of the property being sold at an inadequate price (since no one will buy under such circumstances except a Speculator), and thus would lose the value of the land in excess of the mortgage, if, on a trial in ejectment, the jury should find there was no release.

No Error.