Frink v. . Tyre , 170 N.C. 41 ( 1915 )

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. The mortgage authorizes the 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. 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.

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