Martin v. Kirkpatrick. , 149 N.C. 400 ( 1908 )

CoNNOR, J.

The affidavits of the plaintiff and defendant present a number of controverted questions of fact which cannot be satisfactorily disposed of upon this appeal. It is manifest that, by the terms of defendant’s mortgage, the power of sale cannot be executed prior to 4 May, 1908, and the advertisement was premature. Defendant, however, contends that by virtue of a provision in the Bankrupt Law, all debts are made due and collectable upon the adjudication in bankruptcy. However this may be for the purpose of proving them against the estate of the bankrupt, we do not see how this provision can effect the rights or remedies of a creditor who does not prove her debts. The power of sale in the mortgage must be enforced according to its terms, without regard to other remedies given the creditor for the collection of the debt. Our statute has the same- provision when a general assignment is made by a debtor, Rev., see. 967, bnt it bas never been supposed that it bad any other effect than to permit the creditor to proceed to collect bis debt by suit, attachment, etc. It cannot be construed to change the terms of the mortgage. We forbear discussing the questions debated before us because, until the facts are found upon issues submitted to a, jury, or by the Courts they are not presented. In. either aspect of the case we concur with his Honor in continuing the injunction to the hearing. The parties should file appropriate.pleadings and go to trial upon them, to the end that the very truth of the matters in controversy may be settled. The order continuing the injunction is

Affirmed.