Summary
In Averett v. Ward, 45 N.C. 195, it is held that the personal representative of a deceased mortgagor is not a necessary party to a bill for foreclosure of a mortgage on land.
Summary of this case from Geitner v. JonesOpinion
June Term, 1853.
The personal representative of a deceased mortgagor is not a necessary party to a bill filed for a foreclosure of a mortgage of land.
Where a bill by its prayer submits to a sale of the land mortgaged, a sale is usually ordered, as most convenient for both parties.
THE bill in this cause was filed at Fall Term, 1844, of the Court of Equity for ONSLOW. It alleged that one Richard Ward, in 1823, had made a mortgage of certain parcels of land, describing them, lying in Onslow county, to the plaintiff's intestate, for the purpose of securing to the said intestate a debt evidenced by a bond of the same date, payable twenty years thereafter; that the mortgagor remained in possession until his death, and then devised the land to the defendant George J. Ward, who is still in possession. It then charges that the debt is still due, and prays for an account, and a decree for payment of what shall be found due by a short day, or in default thereof, that the land be sold, and that the heirs of the plaintiff's intestate, c., be decreed to make title, c.
J. H. Bryan, for the plaintiff.
J. W. Bryan, for the defendant, Ward.
The answer of George J. Ward admits "that the bond and mortgage mentioned in complainant's bill bear the signature of his father, the late Richard Ward, but this defendant has been informed, and believes, that the said signatures were obtained by fraud and imposition practiced upon the said Richard Ward while in a state of intoxication," c.
No other allegations are material to the understanding of the opinion of this Court.
At Spring Term, 1853, the cause was set for hearing on the bill, answer and proofs, and transmitted to the Supreme Court.
The bill is filed by a mortgagee to foreclose an equity of redemption, or for the sale of the premises. The statements of the bill and those of the answer show a (195) clear original right to the relief sought. The answer, however, insists upon the length of time which elapsed since the execution of the mortgage deed, and also upon the alleged drunkenness of the mortgagor at the time of the execution of the mortgage deed. If this latter defence had been so stated in the answer as to amount to a defence, it is entirely unsupported by any proof. As to the first, it cannot avail the defendant. The bond given to secure the money mentioned in the mortgage did not fall due until 1843, and the bill was filed in 1846.
The principal defence relied on however, is the alleged want of parties. It is insisted that the personal representative of Richard Ward ought to be a party. The answer is, there is no relief prayed against the personal estate. The prayer is for a foreclosure in the ordinary way, but the plaintiff submits to a sale of the land itself, if the Court thinks proper so to decree. In a case of mortgage, in discharging the debt, the most convenient course for both parties is primarily to have the land itself sold, giving to the debtor any surplus that may remain; and this rule is acted upon in this State. Ingram v. Smith, 41 N.C. 97. And in most of the States of the Union, where the aid of a Court of Equity is asked, and even in England where the rule does not exist, there are some cases in which its propriety is recognized; as where the mortgage is of land, and which by the local law is subject to sale. Story's Eq. s. 1025, 1026. Cook on Mortgages, 521. In this State, the personal representative of the mortgagor may be made a party, but is not a necessary one. Worthington v. Lee, 2 Bland 684. The land mortgaged is primarily liable to pay the mortgaged debt, and the personal property of the deceased is liable to the heir in exoneration of it. Adams 585. There must be a decree for the sale of the land in question, and the case is referred to the Master to ascertain what is due in principal and interest upon the bond of 25 August, 1823.
PER CURIAM. Decree accordingly.
Cited: Ferguson v. Hass, 62 N.C. 115; Hyman v. Devereux, 63 N.C. 628; Mebane v. Mebane, 80 N.C. 38; Isler v. Koonce, 83 N.C. 55; Fraser v. Boon, 96 N.C. 329; McGowan v. Davenport, 134 N.C. 533; Bradburn v. Roberts, 148 N.C. 218.
(196)