Purnell v. . Vaughan , 77 N.C. 268 ( 1877 )

The plaintiff executed two mortgage deeds to the defendants conveying certain land and chattel property to secure advancements for agricultural purposes, and alleged that the defendants had failed to comply with their part of the agreement. The defendants instituted proceedings to sell the crops by virtue of a power in the mortgage; and upon affidavit of the plaintiff that he was not indebted to the defendants, there was an order stopping the sale. An action of claim and delivery was then commenced by the defendants, and is still pending; and the defendants also advertised to sell the land, etc., under the power of sale. It was further alleged that the interest claimed by virtue of said agreement was usurious, and that the matters in controversy between the parties were not determined, nor the amount due upon the mortgage ascertained. Wherefore the plaintiffs asked for an order restraining the defendants from selling said property.

It appearing from the complaint and answer, exhibits, and affidavits in the case that there had been mutual dealings between the parties and several mortgages given to secure balances on account, extending over several years, his Honor held that the sale under the mortgage should not be had until the balance due thereon was ascertained and (269) declared by a decree of court. The motion for the injunction was allowed upon the condition that the plaintiff agree in writing to release all claim for forfeiture and penalty on account of usury, and to pay the balance, if any, which may be found against him, at 6 per cent interest thereon. From this judgment (imposing the condition as above) the plaintiff appealed. This case is stronger than Capehart v. Biggs, ante, 261. Here we have an unascertained balance due upon the mortgage, to say nothing of the charge of usury; the fact of an action pending for damages by reason of a failure on the part of the defendants to comply with their part of the agreement; and the fact that the power to sell the land is subject to the conditions precedent, to wit, that the balance due is not met by a sale of the crop and by a sale of the property contained in the chattel mortgage.

The proceeds of the sale of the crop is stopped by an order still pending. The sale of the horses, mules, etc., under the chattel mortgage is stopped by an injunction still pending. In despite of these actions now pending, the defendants seeks to "cut the Gordian knot" by a sale of the land under the power in the mortgage deed. This cannot be allowed.

PER CURIAM. Affirmed.

Cited: S. c., 80 N.C. 46; s. c., 82 N.C. 134; Pritchard v.Sanderson, 84 N.C. 303; Pender v. Pitman, ib., 378; Howell v. Pool,92 N.C. 453; Hutaff v. Adrian, 112 N.C. 260; Whitehead v. Hale,118 N.C. 603; Montague v. Bank, ib., 286; Jones v. Buxton,121 N.C. 286;

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