Bruner v. . Threadgill

93 N.C. 225

• Court: Supreme Court of North Carolina
• Decided: October 5, 1885
• Status: Published

Opinion

Smith, C. J.

The action was commenced against George W. Willoughby, the mortgagee, by the issue of a summons on March 28, 1878, which was served on him in April thereafter, by the plaintiffs, the widow and heirs at law of Jacob Bruner, the mortgagor, with the husbands of two of the married daughters. Soon after the service of the process, Willoughby died intestate, and a summons issued against the defendants, who are bjs administrators, surviving wife, a married daughter and her husband.

They resisted the plaintiffs’ claim, and in their answer set up defences to the action, thus rendering the suit necessary to the enforcement of the plaintiffs’ rights as declared and established at the trial. In this way, and in taking the accounts of the rents and profits, which the defendants’ ancestor in his lifetime, and themselves as maintaining the possession siuee, are chargeable with the costs which have been incurred in reduction of the mortgage debt. The costs, therefore, ought to fall upon the unsuccessful party to the controversy which springs out of the action, and so the statute adjudges. The Code, §525.

Of course the ruling as to the taxation of costs made when the decree of sale is entered, is understood to have reference to such as then had accrued, and upon the supposition that the debt is paid within the limited time therein.

Should the sale take place in consequence of the plaintiffs’ default, it would seem reasonable that the costs of the sale should come out of proceeds of sale, and such we assume, will be the action of the Court when such exigency arises.

There is no error, and this will be certified to the Court below.

No error. Affirmed.