Stewart v. . Bardin , 113 N.C. 277 ( 1893 )

The jury returned a verdict that defendant was indebted to plaintiff in the sum of $200 and interest, and judgment was rendered ordering a sale of the land. The defendants excepted, contending that the mortgage, by its terms and conditions, did not convey the land or authorize its sale to pay the debt, but only the rents and profits thereof.

The condition contained in the mortgage was as follows:

"If we, or either of us, or our personal representative, shall pay back to the said J. L. Stewart the sum of $200, on or before the first day of January next, then this instrument shall be null and void; but in case we fail to make said payment, then this instrument shall be in full force and effect. And it is further understood that, until default made as aforesaid, that we, the grantors aforesaid, shall have and keep possession of said land; but after default it shall be lawful for the said J. L. Stewart and his assigns to enter upon said land, hold, occupy and receive the rents and profits of said land until the rights of the parties hereunder shall be duly adjusted according to law, it being the true intent of this instrument to secure to the said J. L. Stewart the payment of the said sum of $200 on the first day of January next." The mortgage which the plaintiffs seek to foreclose in this action has in it no power of sale, and provides that, after default, the mortgagee or his assigns may take possession of the mortgaged premises and receive the rents "until the rights of the parties shall be fully adjusted according to law." We find nothing in this inconsistent with plaintiff's assertion of right to have the land sold under a decree of foreclosure if the debt is not paid. It only incorporates (279) in the deed, as an express stipulation between the parties, what the law, without its insertion therein, would have adjudged to be the mortgagee's rights. The right to receive the rents after default is in no wise inconsistent with the asserted right to have the land itself sold.

No error.