Brame v. . Swain , 111 N.C. 540 ( 1892 )

Where a contract is made for the sale of land, the purchase money to be paid in annual instalments, and the vendee is let into possession, the vendor cannot maintain an action for specific (543) performance until the last payment is due. The relation between such parties is substantially that subsisting between mortgagee and mortgagor, and governed by the same general rules (Jones v. Boyd,80 N.C. 258); and in the absence of a stipulation to that effect, a mortgage cannot be foreclosed until the maturity of all the notes which it is given to secure. Harshaw v. McKesson, 66 N.C. 266. These authorities fully sustain his Honor in declining to decree a sale of any part of the land. We think, however, there was error in refusing the plaintiffs a personal judgment on the notes actually due at the commencement of the action. There is nothing in the contract of sale which either expressly or by implication amounts to an agreement to suspend the personal remedy, and in Harshaw's case, supra, in which a foreclosure was denied, the Court explicitly declared that "the plaintiffs, if they had seen proper, might have proceeded in an action at law to recover the instalments as they became due, but they could not have a foreclosure until the day of redemption was passed." See, also, Allen v. Taylor, 96 N.C. 37. The principle stated in Harshaw v. McKesson, 65 N.C. 688, that where a mortgage is executed to secure a note previously given, there is an implied promise to suspend the personal remedy, has no application to the facts of this case.

MODIFIED.

Cited: Barbee v. Scoggins, 121 N.C. 142; Hinton v. Jones, 136 N.C. 56.