Lowe v. Jackson

140 S.E.2d 1 (1965) 263 N.C. 634

Claude LOWE and wife, Lela Lowe, Porter Lowe and wife, Hallie Lowe,
v.
W. M. JACKSON, Trustee, and David L. Hiatt, Substitute Trustee, for J. Anderson Whitaker.

No. 668.

Supreme Court of North Carolina.

January 29, 1965.

Blalock & Swanson and C. Orville Light, Pilot Mountain, for plaintiff appellees.

Hiatt & Hiatt, Mount Airy, for defendant appellants.

DENNY, Chief Justice.

Since there is no exception to the findings of fact, the appeal presents only these questions: (1) Do the facts found support the judgment, and (2) does any error of law appear upon the face of the record? Taney v. Brown, 262 N.C. 438, 137 S.E.2d 827; Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592.

"Novation' may be defined as a substitution of a new contract or obligation for an old one which is thereby extinguished. * * * The essential requisites of a novation are a previous valid obligation, the agreement of all the parties to the new contract, the extinguishment of the old contract, and the validity of the new contract. * * *" 66 C.J.S. Novation §§ 1 and 3 cited in Tomberlin v. Long, 250 N.C. 640, 109 S.E.2d 365.

"Novation implies the extinguishment of one obligation by the substitution of another." Walters v. Rogers, 198 N.C. 210, 151 S.E. 188.

It is well settled that where the language of a contract is plain and unambiguous, it is for the court and not the jury to declare its meaning and effect. Stewart v. McDade, 256 N.C. 630, 124 S.E.2d 822; Eastern Steel Products Corp. v. Chestnutt, 252 N.C. 269, 113 S.E.2d 587.

There is nothing in the agreement executed by Porter Lowe that tends to show an intention on his part to do anything more than to assume the indebtedness outstanding against the property he purchased from his co-plaintiffs.

"* * * (A) debt assumption agreement by the purchaser of the equity of redemption is not a novation of the mortgage note, there being no element of a further consideration passing between the parties or a substitution of a new for an old or subsisting debt. As between the mortgagor and his grantee assuming the debt, the mortgagor is a surety. But as between the mortgagor and the mortgagee he remains primarily liable for the mortgage debt when the mortgagee does not accept or rely upon the debt assumption agreement, even though the mortgagee accepts from the purchaser of the equity partial payments on the note and extends the time of payment without notice to the mortgagor. And the mortgagee, upon default may either sue in rem by foreclosure, or in personam on the note against the mortgagor and against the purchaser of the equity of redemption on the contract made for the mortgagee's benefit. * * *" Strong's North Carolina Index, Vol. 3, Mortgages and Deeds of Trust, § 15; Federal Land Bank of Columbia v. Whitehurst, 203 N.C. 302, 165 S.E. 793; Brown v. Turner, 202 N.C. 227, 162 S.E. 608.

There can be no doubt from the facts as found by the court below and as they appear in the record, that the original notes and deeds of trust were executed and had matured more than ten years prior to the time defendant David L. Hiatt, substitute trustee, attempted to exercise the power of sale contained in the original deed of trust; nor can there be any doubt about the fact that both notes and deeds of trust securing them are barred by the statute of limitations, since no payment has been made on either of such notes. Spain v. Hines, 214 N.C. 432, 200 S.E. 25.

Under the provisions contained in G.S. § 45-21.12, the right to exercise any power of sale contained in a deed of trust is barred after ten years from the maturity of any note or notes secured thereby, where no payments have been made thereon extending the statute.

This Court, in Spain v. Hines, supra, in construing the above statute, said: "This means, of course, that the power referred to in the statute must be exercised within the ten year period following the maturity of the note, or from the last payment thereon. The evidence here shows no payment or other transaction which would take the note out of the bar of the statute of limitations, counting from its maturity." Serls v. Gibbs, 205 N.C. 246, 171 S.E. 56.

The findings of fact by the court below support the judgment and we find no error of law upon the face of the record. Therefore, the judgment of the court below will be upheld.

Affirmed.