Tilley v. Lindsay, 205 N.C. 824 (1934)

Jan. 24, 1934 · Supreme Court of North Carolina

205 N.C. 824

DUNCAN TILLEY et al. v. C. L. LINDSAY et al.

(Filed 24 January, 1934.)

Mortgages H b — At expiration of agreement not to foreclose mortgagee is entitled.to foreclosure if debt is not paid.

Where a consent judgment for the amount of the mortgage debt stipulates that foreclosure should be delayed for six months “provided mortgagor should pay a certain sum monthly, mortgagee is entitled to foreclosure at the expiration of the period, regardless of whether the monthly payments were made as agreed, if at that time the mortgage debt is not paid or any amount tendered on the judgment.

Appeal by plaintiffs from Small, J., at February Term, 1933, of Dubham.

W. S. Lockhart for appellants.

W. T. Towe for appellees.

Pee, CueiaM.

This is a civil action in which the court dissolved an order restraining the defendants from foreclosing a deed of trust. A eonsent judgment had previously been rendered by which the defendant, C. L. Lindsay, recovered of the plaintiffs $1,650 with interest from 21 February, 1929, until paid. It was agreed that foreclosure should be delayed for a period of six months, provided the plaintiffs should pay Lindsay $25.00 on 25th day of each month during this period. Whether these payments were made is immaterial. The trustee did not undertake to foreclose the deed of trust until after the expiration of the six-month period and the plaintiffs do not claim to have paid the debt or to have tendered any amount on the judgment. Judgment

Affirmed.