john.W. Ellis v. . Samuel Hussey

66 N.C. 501

Opinion

RodmAN, J.

A vendor who contracts to convey on payment of the purchase money may be considered as between the parties a mortgagee. It has always been held that a mortgagee has two remedies which he may prosecute at the same time, one in personam for his debt, the other in ram to subject the mortgaged property, and it never was supposed that a resort to the first waived the second, or that after a sale of the mortgaged property, he could not resort to the first for any unpaid residue. 2 Story Eq., Jur. 1007, 1034, 1035, c. 9th edition, citing Thurber v. Jewett, 295.

It is true, that the plaintiff in this case could, in án action seeking a sale of the property which be held substantially as mortgagee, have obtained a judgment for the sale of the property, and that if the property brought less than the debt, he could have execution against the debtor for the residue. Rut that would not have given him the full benefit of his action m personam by which he obtained execution against tbe debtor,, before a sale of the property, whereas upon his action to subject the property, he would have been compelled first to exhaust the property. The two actions are not therefore for the same cause, and a different relief is obtained in each. And this, continues to be the case, notwithstanding a single Court gives all the relief which must have heretofore been obtained in two.

There is no error. Judgment affirmed, and the action is remanded to the Superior Court of Iredell to be proceeded in according to law.

Pee Oueiah. Judgment affirmed.