Weil Bro. v. . Uzzell

92 N.C. 515

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

Opinion

MekriMON, J.

A frivolous answer is one that raises no issue or question of fact or law pertinent and material in the action. Howell v. Ferguson, 87 N. C., 113; Atkinson v. McIntyre, 90 N. C., 147.

Applying this rule of law, we concur with the Court below in the opinion that the answer of the defendants was frivolous. It confesses the complaint, and alleges immaterial and irrelevant matters as defences, that in no way modify or affect the plaintiffs’ rights to the remedy and the particular relief they seek.

The defendants admit the execution of the note and mortgage and their validity in all respects, and they do not insist that any part of the debt has been paid.

If it be true, as alleged in the answer, that there were docketed judgments that constituted a lien upon the land at the time of and before the execution of the mortgage, still it passed whatever interest the defendants had in the land, subject to the prior liens of the judgments. . If the land was sold to satisfy such judgments, and this required all the proceeds of the sale, the plaintiffs would get nothing by the mortgage, and a sale under it would pass nothing. But the defendants cannot be allowed to say they mortgaged nothing. The plaintiffs are entitled to have the benefit of whatever interest the mortgage deed passed to them, whether that be much or little.

No question in respect to the defendants’ right to homestead in the land was presented by the answer. The mortgage deed conveyed that to the plaintiffs.

If it turns out that the purchaser at the sheriff’s sale got a good title to the land, and that he afterwards conveyed such title to the defendants for life, as they allege, the sale under the mortgage cannot disturb them as to that, because, in that case, their present title would be acquired subsequent to, and without regard or reference to the mortgage. If the purchase at the sheriff’s sale w&s bona fide, then the defendants have a new estate, unaffected by the mortgage. The scope and purpose of the action is to foreclose the mortgage and to sell such interest in the land as passed by the mortgage deed and no more. The decree of foreclosure and sale cannot have a broader scope or effect, nor does it purport to have. If the defendants got a good title from John W. Isler as they allege, the decree in this action would not estop them from asserting it whenever it might become necessary to do so. The mortgage deed passed the title to the land to the mortgagors subject to the liens of the judgments, and the caséis therefore different from that class of cases where the mortgage or other deeds pass no title. Johnson v. Farlow, 13 Ired., 84; Eddleman v. Carpenter, 7 Jones, 616; Frey v. Ramsour, 66 N. C., 466.

The defendants ask that the plaintiffs be required to sell certain “collateral” securities which they hold to secure the mortgage debt in addition to the mortgage, to the end that they may, have homestead in the land. 'Phis is scarcely sincere. They first contend, that in effect the mortgage deed passed nothing substantial to the mortgagees, and yet they ask that the sale be postponed. Wherefore? How can they have homestead in an equity of redemption, when according to their own allegation, the whole of the mortgaged property was sold to discharge prior liens?

But if there were a substantial equity of redemption, and if, possibljq in some cases, the mortgagee might be required to sell a part of the mortgaged land sufficient to pay his debt, to the end the mortgagor might have homestead laid off and allotted to him in other convenient parts of it, the answer of the defendants raises no such question. They do not allege that the whole of the mortgaged property, including the “collateral” securities, will be sufficient to pay the mortgage debt. The answer contains no allegation or suggestion as to the value of the property. In that respect it is silent.

There is no error. Let this opinion be certified to the Superior Court, to the eud that that court may take further appropriate steps in the action.

No error. Affirmed.