Gore v. . Davis

Supreme Court of North Carolina

Gore v. . Davis

32 S.E. 554, 124 N.C. 234, 1899 N.C. LEXIS 45

CourtSupreme Court of North Carolina

DecidedMarch 21, 1899

StatusPublished

Cited by13 cases

This text of 32 S.E. 554 (Gore v. . Davis) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gore v. . Davis, 32 S.E. 554, 124 N.C. 234, 1899 N.C. LEXIS 45 (N.C. 1899).

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Opinion

*235 Clare, J.

The note sued on was dated 19th October, 1897, and payable three years after date, bnt the interest was made “due and payable semi-annually.” The mortgage to secure the note specified, “if default shall be made in payment of said bond or the interest on the same, or any part of either at maturity,” the creditor could proceed to sell the land and out of proceeds of sale “pay said bond and interest on the same.” The defendant failed to pay the interest which fell due 19 th April, 1898. By the conditions of the mortgage the principal and interest became due. The demurrer of the defendant, that this action for judgment on the note and foreclosure of the mortgage was premature, was properly overruled. Capehart v. Dettrick, 91 N. C., 344; Kitchin v. Grandy, 101 N. C., 86; Whitehead v. Morrill, 108 N. C., 65; Kiger v. Harmon, 113 N. C., 406; Barbee v. Scoggins, 121 N. C., 135. Nor is a demand or refusal to pay necessary before beginning an action of this nature.

Upon overruling the demurrer, the defendant was entitled to answer at that term (The Code, section 272), but the refusal of further time to answer was in the discretion of the trial Judge. The Code, section 274. The defendant having failed to answer, and the complaint being verified, the Court rendered judgment that if $3,000 (the principal of said note) and interest and costs were not paid within the time specified in the judgment, the mortgaged premises should be sold after due advertisement and judgment against the defendant for any deficiency, after applying the proceeds of said sale to the satisfaction of the judgment. The judgment is loosely and inartificially drawn. There is no sum adjudged to be due by the defendant to the plaintiff, which should be done before a foreclosure is directed. It may be inferred, upon the maxim id cerium est quod cerium reddi protest.. The judgment should be reformed by the Court *236 below to accord with the established form in such eases. This loose practice can not be encouraged and the costs of this Court will be divided between the parties. Code, section 527. With this modification the judgment below is affirmed.

Modified and affirmed.

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*235 Clare, J.

The note sued on was dated 19th October, 1897, and payable three years after date, bnt the interest was made “due and payable semi-annually.” The mortgage to secure the note specified, “if default shall be made in payment of said bond or the interest on the same, or any part of either at maturity,” the creditor could proceed to sell the land and out of proceeds of sale “pay said bond and interest on the same.” The defendant failed to pay the interest which fell due 19 th April, 1898. By the conditions of the mortgage the principal and interest became due. The demurrer of the defendant, that this action for judgment on the note and foreclosure of the mortgage was premature, was properly overruled. Capehart v. Dettrick, 91 N. C., 344; Kitchin v. Grandy, 101 N. C., 86; Whitehead v. Morrill, 108 N. C., 65; Kiger v. Harmon, 113 N. C., 406; Barbee v. Scoggins, 121 N. C., 135. Nor is a demand or refusal to pay necessary before beginning an action of this nature.

Upon overruling the demurrer, the defendant was entitled to answer at that term (The Code, section 272), but the refusal of further time to answer was in the discretion of the trial Judge. The Code, section 274. The defendant having failed to answer, and the complaint being verified, the Court rendered judgment that if $3,000 (the principal of said note) and interest and costs were not paid within the time specified in the judgment, the mortgaged premises should be sold after due advertisement and judgment against the defendant for any deficiency, after applying the proceeds of said sale to the satisfaction of the judgment. The judgment is loosely and inartificially drawn. There is no sum adjudged to be due by the defendant to the plaintiff, which should be done before a foreclosure is directed. It may be inferred, upon the maxim id cerium est quod cerium reddi protest.. The judgment should be reformed by the Court *236 below to accord with the established form in such eases. This loose practice can not be encouraged and the costs of this Court will be divided between the parties. Code, section 527. With this modification the judgment below is affirmed.

Modified and affirmed.

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32 S.E. 554, 124 N.C. 234, 1899 N.C. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gore-v-davis-nc-1899.

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