Nimrock v. . Scanlin , 87 N.C. 119 ( 1882 )

The point was raised on the trial in the court below, that Martha D. Scanlin was a necessary party to the action.

We are of the opinion the point is well taken, for she joined (121) with her husband in both deeds of mortgage, and if the land was the absolute property of her husband, there is nothing in the deeds to show that her joining in them was intended to affect her dower or homestead right in the land. But for aught that appears upon the face of the deeds, she may have been the owner of the same in her down right, or had a joint interest in it with her husband; but however this may be, the deeds are susceptible of that construction, and an adjudication upon her rights in the action, without her being a party and having an opportunity to assert and defend them, would be an act of injustice to her.

While we concur with his Honor in the court below, that the relief he proposed to give the plaintiff was not inconsistent with the case made by the complaint, and the plaintiff under the prayer for general relief, was entitled to such relief as it was the purpose of his Honor to grant by the decree rendered, we do not concur in the mode of granting it, and think there was error in the decree in that respect.

The practice in foreclosing mortgages has long been established by the courts. They never, as in this case, make an order or decree for an unconditional sale, but decree a sale to be made after a certain time, usually three months from the decree, unless the money secured by the mortgage is in the meantime paid. Capehart v. Biggs, 77 N.C. 261; 2 Jones on Mortgages, Sec. 1563; Johnson Ch. Rep., 140.

This condition was introduced in the decrees of sale of mortgaged property, to prevent mortgagors from being taken by surprise, and to give them an opportunity of raising the money and saving their property from sale.

We therefore remand the cause that Martha D. Scanlin may be made a party to the action, and that the decree may be modified, if the plaintiff shall be so advised, in conformity to this opinion.

Cited: Vanstory v. Thornton, 114 N.C. 376; Chadbourn v. Johnston, 119 N.C. 287.

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