Kiger v. . Harmon ( 1893 )

The plaintiff, in deference to the opinion of his Honor that the action was premature, submitted to a nonsuit and appealed.

The facts necessary to an understanding of the decision of the Court are sufficiently adverted to in the opinion of Associate Justice Clark. Though the note sued on purports to be due one day after date, the mortgage and contemporaneous agreement contains (407) a stipulation that it shall be paid in installments of ten dollars per month. Upon the trial the plaintiff was permitted, without objection, to amend so as to allege and prove that the agreement was to pay ten dollars per week. The note and mortgage must be construed together and as making one contract. With the amendment allowed (if the jury should find there was such a mistake as to justify correcting the mortgage) the weekly installments of ten dollars, beginning 1 July, 1892, when the first weekly installment was to have been paid, down to 7 October, 1892, when this suit was instituted, would have amounted to $150. The third section of the complaint admits that $130 had been paid within that time. According to the complaint there would have been, therefore, a balance due on the installments of $20 when suit was brought. The court erred, therefore, in holding that the action was premature. The plaintiff had a right under the mortgage to claim possession of the property to be applied on the installments due. It not being alleged and shown that the property was worth "not more than $50," the Superior Court alone had jurisdiction, as it would have had it concurrently with a Justice of the peace if of less value than $50. Novillev. Dew, 94 N.C. 43; The Code, sec. 887.

It will be noted that there was no agreement here that upon failure to pay one installment all the installments should become due and payable, as in Capehart v. Dettrick, 91 N.C. 344; Kitchin v. Grandy,101 N.C. 86; Whitehead v. Morrill, 108 N.C. 65. The verified complaint not having been answered, the plaintiff was entitled to judgment for balance due on installments up to issuance of the writ, and for possession of property that it might be sold (or so much as was necessary) to be applied on the judgment then obtained. Moore v. Woodward,83 N.C. 531. But as it was alleged that the property had been wasted since the bond in claim and delivery had been given, the (408) value of the same, unless admitted to be as much as $20, is the subject of inquiry before a jury. Rogers v. Moore, 86 N.C. 85. The demand for possession of property and for judgment for the debt secured thereon is properly joined. Clark's Code, (2 Ed.), pages 210-214, and cases cited. Even if this had been a misjoinder, the objection was waived if not taken by demurrer or answer. Finley v. Hayes, 81 N.C. 368;Burns v. Ashworth, 72 N.C. 496; McMillan v. Edwards, 75 N.C. 81.

Error.

Cited: Hocutt v. R. R., 124 N.C. 216; Gore v. Davis, ib., 235.