Blackledge v. Nelson, 17 N.C. 65, 2 Dev. Eq. 65 (1831)

June 1831 · Supreme Court of North Carolina

17 N.C. 65, 2 Dev. Eq. 65

William S. Blackledge et al. v. Jourdan Nelson et al.

Pile arrest of a debtor, upon final process, is not necessary to enable a guarantee of the debt to charge the guarantor.

After the decree for an account, made in this cause,, at the last term, (avíe mol. 1, 418) the clerk reported, that in December, 1817, the plaintiffs sold the land mentioned in the pleadings to the defendant Nekon, tvN received, among other notes, one made by Huntie and Henry Smith, for $1436 10, due November 6, 1318, “ which notes were in full payment for the land sold the defendant Nelson, and which when paid off, discharged the mortgage,” given by him to the plaintiffs. That the plaintiffs commenced suit on the note, returnable to the first court after it became due — that the suit was not put at issue until August term, 1819, of Pitt County Court, one of the defendants not being arrested, until the return of a plañes — that the cause was continued until November term, 1820, when judgment was entered up — that a fi.fa. issued, returnable to February term, 1821, which was returned nulla lona, and thereupon a ca. sa. immediately issued, upon which the defendants in the execution were arrested, and discharged under the act for the relief of insolvent debtors. Upon these facts, the clerk reported the amount of the debt, interest and costs, as still due upon the mortgage.

Gaston, for the defendant Nelson,

excepted to the report, because the clerk had not reported that nothing vtas due upon the mortgage. He also insisted, in favor Little, a defendant, and who had purchased a part of the mortgaged land from Nelson, that if a decree was-made for the plaintiffs, a sale of the residue of the mortgaged premises in the possession of Nelson, should bo. ordered, in the first place, so as to throw upon the defendant Little, only the residue of the mortgage oebt, after applying t- its cay me-it the proceeds of that part-still belonging, in' equity, to Nelson.

Upon a bill of foreclosure, a sale of the mortgaged premises is directed.

Where a part of the mortgaged premises ■was sold by the mortgagor subsequent to the mori.gage, a sale_ of the residue of the land will be ordered in the firsi instance,tor the payment of the. mortgage debt.

Hogg, for the plaintiffs.

IluEiYN, Judge.

It might well have been insisted by the plaintiffs, that the omission to arrest the Smiths on a ca. sa. had it happened, could not have been imputed to them as laches, which would have made that debt their own. For I know not of any rule, which requires either an agent, or an assignee of a bond, to put the obligor in prison ; unless such a course be stipulated.for. It is. sufficient, if diligent and reasonable efforts be made to-collect the money, and a failure happen by reason of the debtor’s insolvency. Here the bond was put in suit at the first court after it fell due, and. was prosecuted to judgment. The defendant’s counsel urges the pendency of it till November term, 1820, as evidence either of neglect or of collusion with the debtors. That is not sufficient evidence of neglect; for the delay might have* arisen from the state of the business in the court, or applications of-the defendants for continuances allowed by the court. For we know that about thatperiod our dockets weref crowded, and seldom gone through ; and thai debtors often use unjustifiable shifts- to put off trials. The defendants ought therefore to show the actual cause of the delay. Hut the fact, that at the next term after judgment the plaintiff imprisoned the Smiths, entirely rebuts all unfavorable inference from the delay, and repels the idea of collusion. The exception must be overruled, and a foreclosure decreed on the footing of the report of the clerk, with, costs to the plaintiffs. The course in this State has not been strictly a foreclosure; but a sale of the mortgaged premises, as most advantageous to both parties.

The defendant Little alleges a purchase by him from . Jfason; and if he had produced his con veyance, or otherwise proved it, a sale (if the residue only would be or - dered in the first instance. As it is, that allegation must be disregarded, and the whole sold as mortgaged.

Per Curum'. — -Decree weou-nrMr, w.