There was no error in the trial of this action. On the argument of the defendants’ appeal in this Court, their counsel stated that defendants did not desire a new trial of the- issue involving the *641amount due on tbe note secured by tbe mortgage, but did contend tbat there was error in tbe judgment. Tbis contention is sustained.
Tbe admission in tbe pleadings tbat prior to tbe commencement of tbis action, plaintiff bad deposited witb M. ~W. Gant, clerk of tbe Superior Court of Guilford County, tbe amount wbicb be contended was due on tbe note, and wbicb tbe jury found was tbe amount due, does not support tbe contention of tbe plaintiffs tbat said amount was thereby paid. There is no statute in tbis State, wbicb authorizes a person who is a party to a controversy as to tbe amount of bis debt to another, to pay tbe amount wbicb be contends is due to a clerk of tbe Superior Court, and thereby discharge bis debt. In tbe instant case, M. W. Gant received tbe amount paid to him by tbe plaintiff, as tbe agent of tbe plaintiff and not of tbe defendant. It is not alleged in tbe complaint nor was there evidence at tbe trial tending to show tbat tbe amount found by tbe jury to be due on tbe note was tendered to tbe defendant by tbe plaintiff or by M. W. Gant, prior to or during tbe pendency of tbe action. There is error in tbe judgment.
Tbe action is remanded to tbe Superior Court of Guilford County, tbat judgment may be entered in said court, fixing tbe amount due on tbe note. It was error to enjoin and restrain tbe defendant, upon tbe admission in tbe pleadings, from selling tbe land described in tbe complaint under tbe power of sale contained in tbe mortgage from Jesse Cole and wife to tbe defendant.
No error in tbe trial.
Error in tbe judgment.