Hutaff v. . Adrian

17 S.E. 78, 112 N.C. 259

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Clark, J.:

Upon the allegations in the complaint taken as true the defendants’ bond and mortgage are alike barred by the statute of limitations. The Code, §152 (2) and (3). A sale under such mortgage would carry to the purchaser no title. The plaintiff mortgagor being in possession has a full defence to an action for ejectment when brought by the purchaser. Capehart v. Biggs, 77 N. C., 261; Fox v. Kline, 85 N. C., 173. The Court will, therefore, not interpose by injunction merely to prevent a cloud upon the title. Southerland v. Harper, 83 N. C., 200; Browning v. Lavender, 104 N C., 69.

It would be otherwise if the contest was 'as to the amount due under the mortgage (whether any balance is due at all, or how much), since then, if any balance is due. the purchaser at the mortgage sale will get a good title, and it might put the plaintiff mortgagor to a serious disadvantage if there were a sale before the amount due is determined. Purnell v. Vaughan, 77 N. C., 268; Capehart v. Biggs, supra; Pritchard v. Sanderson, 84 N. C., 299; Harrison v. Bray, 92 N. C., 488; Gooch v. Vaughan, Ibid., 610.

No Error.