Commercial National Bank of Charlotte v. Carson, 207 N.C. 495 (1934)

Dec. 12, 1934 · Supreme Court of North Carolina

207 N.C. 495

COMMERCIAL NATIONAL BANK OF CHARLOTTE, N. C., and THOMAS D. OSBORNE, Executors of the Estate of MARY D. OSBORNE, v. J. H. CARSON and C. M. CARSON.

(Filed 12 December, 1934.)

Mortgages F a—

Tbe liability of tbe maker of a mortgage note to tbe payee thereof is not changed from, tbat of principal to tbat of guarantor by the fact tbat tbe maker transfers bis equity in tbe property to a third person who assumes tbe debt and tbe payee accepts from such third person- partial payments on tbe note and extends tbe time of payment without tbe maker’s knowledge.

Appeal by defendants from Rill, Special Judge, at June Term, 1934, of MecKlenbueg.

Affirmed.

Tbe plaintiffs brought this action to collect a past-due bond. From tbe allegations contained in tbe complaint and answer it appears tbat tbe plaintiffs are tbe executors of tbe payee of said bond, and tbat tbe defendants are tbe makers thereof; tbat said bond was secured by a deed of trust, and tbat tbe defendant subsquently sold tbe land covered by said deed of trust to a third party, who assumed tbe payment of tbe bond; and tbat tbe plaintiffs, without tbe knowledge of the defendants, dealt with said third party by receiving partial payments on said bond and agreeing to certain extension of payments thereon. ,The defendants bad said third party and tbe trustee' in said deed of trust made parties to this action.

R. L. Taylor and J obn R. Small, J r., for appellants.

J obn M. Roiinson and Runter M. J ones for appellees.

Peb Oubiam.

Tbis is an appeal from a judgment awarded the plaintiffs upon the pleadings, and presents but one question, namely: Where the payee of a bond has dealt with a person, who, for valuable consideration, assumed the payment of the debt by accepting* from him partial payments on the bond and extending the time of the payment thereof without knowledge of the makers, is the character of the makers, as between the payee and the makers, changed from that of principals to that of guarantors? This question is answered in"the negative upon the authority of Brown v. Turner, 202 N. C., 227.

The present judgment does not preclude the defendants from proceeding in this action against him who is alleged to have assumed the payment of the bond, or to foreclose the deed of trust given to secure it, or to obtain any other relief to which they may be entitled against those whom they have had made parties thereto.

Affirmed.