McQueen v. . Smith , 118 N.C. 569 ( 1896 )

The defendant appealed from the judgment in favor of the plaintiff.

The facts are stated by Associate Justice Furches. The intestate of the plaintiff William McQueen, bargained and sold lands mentioned in the complaint to the defendant, John R. Smith, at the price of $3,600 — $600 to be paid in cash and the balance ($3,000) to be paid in equal annual instalments of $428. 58 each. On 11 January, 1888, they closed this contract by defendant's paying to plaintiff's intestate the $600, and by executing seven notes, under seal, for the residue of the price, as agreed upon. At the same time the plaintiff's intestate and his wife and the defendant entered into a written contract to convey the land to the defendant upon the payment of the balance of the purchase money. The contract, signed by the defendant and the intestate and his wife, contained conditions and a power of sale. The conditions were that, if the defendant should make default in the payment of any one of the notes at maturity, the intestate upon thirty days' notice, might take the land back, free from any claim on the part of the defendant, or he might at his option sell the same, after forty days' notice, at public sale, for cash or on a credit, and apply the proceeds to the payment of said indebtedness, and the residue, if any, he should pay to the defendant. The defendant paid the two first notes when they fell due, and a part of the third, leaving the four last notes and the larger part of the third note unpaid. All the notes unpaid were due at the commencement of this action, except the last, which according to its terms, did not fall due until 11 January, 1895.

On 12 January, 1894, the plaintiff administrator commenced this action, in which the heirs at law of the intestate, Neill McQueen, (571) join as plaintiffs, and ask for a foreclosure and sale and the application of the proceeds to the payment of the debt, as provided in the contract.

The defendant answered and denied the plaintiff's right to foreclose and sell until the last note falls due, on 11 January, 1895, and also for the reason that the plaintiff did not give him thirty days' notice before bringing suit, as provided in the contract, before the intestate could have sold under the power contained in the contract if he were living. But the court held that the plaintiff was entitled to a judgment of foreclosure and order of sale, and so adjudged; and to this the defendant excepted and assigned two grounds of error, as follows:

1. "Because an issue as to demand of possession before suit ought to have been submitted to the jury, as asked for by defendant. "

2. "No sale for foreclosure should be asked for by suit or granted by the court until the actual maturity of the last note securing the purchase money. "

Neither of these exceptions can be sustained. The object of notice is to save the trouble and expense of litigation. And where it appears from defendant's answer that, had plaintiff given the thirty days' notice which defendant contends he was entitled to, it would not have prevented the litigation; or, in other words, where the defendant denies plaintiff's right of action, had the notice been given, this does away with the want of notice. Vincent v. Carbin, 85 N.C. 108; Head v. Head, 52 N.C. 620. In this case defendant denies plaintiff's right to bring and maintain this action before 1 January, 1895, and therefore does away with the objection as to notice, if it ever existed.

This leaves the other exception to be considered. And we see that if the intestate Neill McQueen were living he would (572) have the right to sell under the power contained in the contract, all the notes being due, except one, and the condition being that he might sell if "any one" of them was not paid at maturity. If the forfeiture had occurred, and the intestate might have sold at the time this action was commenced, we can see no reason why plaintiff's cause of action had not arisen and why he may not maintain this action. It is true that one of the notes was not due at the commencement of this action; and if plaintiff's right of action depended on this note we would hold with the defendant and dismiss the suit. But plaintiff had a cause of action without this note, which had now been due more than a year, and we see no reason why we should disturb the judgment of the court on account of that note not being due at the commencement of the action.

But the judgment of the court was irregular, in that it provided for the compensation of the commissioner in advance of his services; and it also provides how he should apply the proceeds of the sale, which should not have been done until the sale was made and reported to the court. The judgment should have been for a foreclosure, order of sale and order to report the sale to court for further directions. The judgment, thus modified, will be affirmed.

Modified and Affirmed.

Cited: Shields v. McNeill, post, 593; Moore v. Hurtt, 124 N.C. 29;Hendon v. R. R., 127 N.C. 113.

(573)