Edwards v. Spence, 197 N.C. 495 (1929)

Oct. 2, 1929 · Supreme Court of North Carolina

197 N.C. 495

H. L. EDWARDS and EMMA G. EDWARDS, His Wife, v. H. D. SPENCE.

(Filed 2 October, 1929.)

Mortgages H b — Plaintiff must pay amount admitted to be- due in order to enjoin foreclosure until issue of usury is determined.

The plaintiff in a suit to enjoin the foreclosure of a mortgage on his lands upon the ground that he does not owe the entire amount claimed in that usury was charged in the mites secured by the mortgage, must pay the amount admitted to be due with six per cent interest, or the temporary restraining order theretofore issued will be dissolved upon the principle that one seeking equity must do equity.

Appeal by plaintiffs from an order of Grady, J., at Chambers on 19 April, 1929.

Affirmed.

Shaw & J ones for plaintiffs.

Whitaker & Allen for defendant.

Per Curiam.

In Judge Grady’s order the recitals are the execution by the plaintiffs to the defendant of two notes, each in the sum of $2,000, secured by a mortgage on lands, an allegation by the plaintiffs that the loan made them by the defendant was only $3,500, and that $500 was charged as a bonus or as usury. These allegations were denied. The plaintiffs asked that a sale of the land under the mortgage be enjoined until the issues joined could be determined by a jury. The order required the plaintiffs who sought equity to do equity by paying the amount admitted to be due and interest thereon at six per cent. They failed to comply with the order and the restraining order was dissolved. Under these circumstances the judgment must be affirmed. Waters v. Garris, 188 N. C., 305.

Affirmed.