Wilkes v. Miller

156 N.C. 428

Opinion

Bbowm, J.

1. The judgments of Liddell & Co. referred to in finding 10 were docketed prior to the registration of the mortgages referred to in the findings, but the judgments were never cross-indexed. Therefore they never constituted a lien upon the land. Dewey v. Sugg, 109 N. C., 329.

2. The Wilkes judgment was docketed 5 November, 1895, after the registration of the original mortgages referred to in findings 3, 4, and 5.

On 11 January, 1893, there was due on the mortgages (all on same land) $830. On that date Miller, the owner of the debt, took from the debtor another note and mortgage securing the same debt. The original notes and mortgages were never canceled or surrendered, but were retained by Miller.

Hpon these facts the original notes and mortgages were not discharged, and their lien continued.

The substitution of one note and mortgage for another will not discharge the lien of the original note and mortgage unless the latter is surrendered to the mortgagor, or canceled of record. It is only a renewal or acknowledgment of the same debt. Collins v. Davis, 132 N. C., 106; Hyman v. Devereux, 63 N. C., 626.

The conclusion of bis Honor that the Wilkes and Liddell judgments are not entitled to any portion of the proceeds of the sale of the land, and that the same should be applied to the judgment in favor of Miller in the foreclosure suit, is correct.

Affirmed.

AlleN, J., did not sit on the hearing of this case.