Newberry v. . Draughon ( 1929 )

Civil action for breach of warranty and to restrain foreclosure of mortgage and have the same removed as cloud on plaintiffs' title.

On 14 February, 1920, the plaintiffs purchased a lot of land from the defendants, J. W. Draughon and wife, Jaunita Draughon, and C. L. Wilson and wife, Ethel Wilson, taking deed therefor with full covenants of warranty, etc. This lot, previously owned by R. L. Godwin, had been mortgaged by him to secure his note of $1,500 given to Sallie Purdie. It is alleged by the defendants that the mortgage in question is not a valid encumbrance because it was given to secure a note bearing usurious interest, and that the same should be canceled of record. The mortgagee seeks to foreclose. The plaintiffs ask for injunctive relief and to have the mortgage canceled as a cloud on their title.

The court ruled that the mortgage was a valid encumbrance to the extent of the unpaid principal of the note plus interest at the legal rate, and ordered the mortgage foreclosed if the balance due on the note was not paid. The defendants, R. L. Godwin, J. W. Draughon, and C. L. Wilson, appeal, assigning error. The judgment must be affirmed on authority of Miller v. Dunn,188 N.C. 397, 124 S.E. 746; Waters v. Garris, 188 N.C. 305, 124 S.E. 334, and Briggs v. Bank, ante, 120.

Affirmed.