Martin v. McNeely

Smith, C. J.

(after stating the case.) The complaint in its statement of the facts attending the sale, evidently intended to place at' the option of the mortgagor the confirmation or rejection of the sale, which was the real equitable relation in which he stood towards it. Pie had the right to hold the plaintiff to his purchase, or to repudiate what had been done and hold the plaintiff still to his position as mortgagee unchanged by what had transpired. The election is with the mortgagor. The matter is fully considered in Gibson v. Barbour, decided at the last term and reported in 100 N. C., 192.

The objection, however, if possessed of any force, is removed by the mortgagor’s assent to the plaintiff’s proposition to •treat the attempted sale as a nullity. Thus the apparent purpose of the allegations in this respect has been attained.

The second objection, that the complaint fails to state facts -constituting a cause of action, is equally untenable.

Under the amendment the action is for the recovery of possession of the lands and a judgment for foreclosure and sale of the lands, under the direction of the Court, for the satisfaction of the secured bond. This action of the Court is warranted by the ruling in Robinson v. Willoughby, 67 N. C., 84.

The alleged equity arising out of the promise of the defendant Berry to protect the mortgagor from loss or detriment in making the deed, cannot avail to obstruct the plaintiff in the pursuit of his remedies under the mortgage deed, even if it were made known to the plaintiff. He was no party to the personal undertaking of Berry upon which the said McNeely appears to have relied, which is aside from and does not enter into the conveyance or abridge the plaintiff’s legal rights. If he has any redress, it must be upon the personal engagement of Berry himself. Moreover, if the verbal indemnity against damage was given, most obviously it could not have the effect of becoming an element in the transaction with the plaintiff, and to allow it would be to violate the uniform and consistent rulings of the Court, and to disregard the Statute of Frauds. Walters v. Walters, 11 Ired., 145; Kessler v. Hall, 64 N. C., 60; Bonham v. Craig, 80 N. C., 224; Boone v. Hardie, 87 N. C., 72, cited by counsel.

Upon the facts presented in the pleading and in the answer of the defendant McNeely, the plaintiff’s right to the relief demanded is manifest, and no defence is shown thereto.

There is no error, and the judgment must be affirmed.

Affirmed.