The judgment and order of the Superior Court will be modified in accordance with the principles stated in the syllabus by charging the plaintiff with the costs of the action.
Modified and affirmed.
Frink v. Tyre, 170 N.C. 41 (1915)
Nov. 3, 1915
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Supreme Court of North Carolina
170 N.C. 41
JOHN D. FRINK and Wife, S. J. FRINK, v. F. M. TYRE.
(Filed 3 November, 1915.)
1. Mortgages — Sales—Balance Due — Payment Into Conrt — Tender of Judgment-Injunction.
A sale under a power thereof contained in a mortgage securing four notes maturing at different times, will he restrained in an action brought by the mortgagor for that purpose when it appears that the plaintiff has paid into the court for the defendant a small balance due on the first and only note matured at the time, and has tendered a judgment for the costs.
2. Same — Costs—Appeal and Error.
Where the sale under a power thereof will be enjoined upon payment into court of the balance due on the first and only matured note, the costs will be taxed against the mortgagor, having the sale enjoined, including the cost of judgment, the mortgagee having the right to sell at the time; and in this case, the judgment being modified and affirmed on appeal, the costs thereof are taxed against the mortgagor, the plaintiff.
Appeal by defendant from Whedbee, J., at -tbe February Term, 1915, of Columbus.
Action commenced on 17 December, 1914, to restrain a sale under a power contained in a mortgage executed to secure four notes, falling due respectively 1 June, 1914, 1915, 1916 and 1917. Tbe mortgage authorizes tbe mortgagee to sell upon failure to pay either note or any installment of interest, but there is no provision that upon such failure the whole indebtedness shall become due.
"When the action was commenced there was a small balance due on the first note, which the plaintiff paid into the clerk’s office for the defendant, and at the same time tendered a judgment for costs.
His Honor directed the money in the clerk’s office to be paid to the defendant, continued the restraining order in force until the second note becomes due, and refused the motion for costs.
MacRacken & Greer for plaintiff.
Irvin B. Tucker for defendant.