Walston v. Twiford , 248 N.C. 691 ( 1958 )

105 S.E.2d 62 (1958) 248 N.C. 691

W. F. WALSTON and wife, Wilhelmina P. Walston,
v.
Russell E. TWIFORD, Substitute Trustee, and Charles Buxton Small, Administrator of the Estate of Mattie A. Picot, Deceased.

No. 18.

Supreme Court of North Carolina.

September 17, 1958.

J. W. Jennette, Elizabeth City, for plaintiff-appellant.

Small & Small, Elizabeth City, for defendant-appellees.

RODMAN, Justice.

"A mortgage is a conveyance by a debtor to his creditor, or to some one in trust for him, as a security for the debt." Robinson v. Willoughby, 65 N.C. 520; Watkins v. Williams, 123 N.C. 170, 31 S.E. 388; Wilson v. Fisher, 148 N.C. 535, 62 S.E. 622.

"A mortgage which purports to secure the payment of a debt has no validity if the debt has no existence." Bradham v. Robinson, 236 N.C. 589, 73 S.E.2d 555, 558; Saleeby v. Brown, 190 N.C. 138, 129 S.E. 424; Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210, 32 A.L.R. 870; 36 Am. Jur. 717 and 718.

Since by definition a mortgage is a conveyance of property to secure the obligation of the mortgagor, it is necessary for the mortgage to identify the obligation secured. As said by Stacy, J. (later C. J.): "An agreement to secure one or more obligations must be confined to those intended to be secured by the parties to the contract, for nothing not within the contemplation of the parties will be included in any such agreement." Belton v. Farmers' & Merchants' Bank & Trust Co., 186 N.C. 614, 120 S.E. 220, 221; Garrett v. Stadiem, 220 N.C. 654, 18 S.E.2d 178; Harper v. Edwards, 115 N.C. 246, 20 S.E. 392, citing Jones on Mortgages; 36 Am.Jur. 726 and 727; 59 C.J.S. Mortgages § 112, p. 155.

The mortgage or deed of trust here in question adequately describes the obligation of the grantors. There is no intimation or suggestion that the note recited in the deed of trust was in any way at variance with the terms of the obligation as set out in the deed of trust.

Decisive of this case is the question: Is the provision of the contract valid which terminates liability of the mortgagors for any unpaid balance existing at Mrs. Picot's death. The question has, we think, heretofore been answered by this Court in Moore v. Brinkley, 200 N.C. 457, 157 S.E. 129. Reference to the record in that case discloses that the obligation which the Court was called upon to construe provided: "And the said Mrs. C. F. Bell covenants and agrees that at her death all property owned by her of every kind and description, both real and personal property, shall become the absolute property of the said W. R. Brinkley and wife, Lillie M. Brinkley, their heirs and assigns, forever.

"And the said Mrs. C. F. Bell further covenants and agrees to release them absolutely from any and all indebtedness they may be under to her or her estate at the time of her death."

Speaking with reference to that contractual obligation, the Court, in a per curiam opinion, said: "This contract is valid and enforceable against the plaintiff." Fawcett v. Fawcett, 191 N.C. 679, 132 S.E. 796, cited by the Court, sustains the decision. Recognition of the validity of such a contractual provision is impliedly if not expressly given in Jones v. Norris, 147 N. C. 84, 60 S.E. 714.

The decisions of this Court upholding the provisions of contracts similar to the one involved in this case are in accord with the conclusions reached by the majority of the courts in other jurisdictions.

Miller v. Allen, 339 Ill.App. 471, 90 N.E.2d 251, 252 was an action in which plaintiff sought foreclosure of a purchase money mortgage given to Mary E. Miller. Plaintiff was the administrator of Mary Miller. There as here the parties were unable to find among the effects of the deceased the note which the defendants had executed. The deed of trust recited it secured the payment of a note in the sum of $5,975, payable at the rate of $40 per month. Incorporated therein was the following provision: "no interest is being charged. Should mortgagee die before such payments are completed, the said note of this mortgage shall be considered as fully paid on the death of the mortgagee." The trial court in that case, as here, held the provision invalid and of no force and effect because of "(a) lack of consideration; (b) that no valid gift inter vivos was made; and (c) that it was not a valid testamentary disposition * * *" The appellate court, in reversing the trial court, said: "In a review of the cases in other jurisdictions it appears that the weight of authority favors the validity of an agreement contemporaneous with a debt or legal obligation to the effect that the obligation be extinguished or terminated by the death of a creditor or obligee. This is fundamentally on the basis that the agreement constitutes a valid and enforceable contract as between the parties."

In Hollis v. Hollis, 84 Me. 96, 24 A. 581, one of the provisions of the note and mortgage was: "Now, if the said Susan Rand should die before this note is paid, then this deed & note are null and void, and the said Susan Rand is never to transfer this deed." The court held that upon the death of Susan Rand "the mortgage then became void." Kline v. McElroy, Mo.App., 296 S.W.2d 664; De Lapp v. Anderson's Adm'r, 305 Ky. 336, 203 S.W.2d 389; Farmer v. Farmer, 195 Va. 92, 77 S.E.2d 415; Jones v. Darling, 94 Ga.App. 641, 95 S.E.2d 709; In re Smith's Estate, 244 Iowa 866, 58 N.W.2d 378; Brock v. Lueth, 141 Neb. 545, 4 N.W.2d 285; Dillard v. Dillard, Mo.App., 269 S.W.2d 769.

We perceive no sound reason why we should overrule our prior decisions. The provision is good not as a gift, not as a testamentary disposition, but as a part of the contractual obligation agreed upon by the parties when the loan was negotiated. It appears from the evidence that Mrs. Picot went to live with her daughter and her husband, mortgagors, at or about the time the loan was negotiated. She remained with them until her death. Although she had the right to compel payment of interest or principal during her lifetime, only one payment of interest was made. By express language set out in mortgagors' contract the note and deed of trust were to be marked paid and satisfied upon Mrs. Picot's death.

Reversed.