Piedmont Lumber Co. v. Christenbury

Hoke, J. On the hearing it was made to appear that the male defendant, J. W. Ohristenbury, having undertaken to do some logging for the plaintiff company, said company sold him a logging outfit, including four horses at the price of eight hundred dollars, and took a note therefor, secured by a mortgage on the property, bearing date 31 July, 1906, payable 1 December, 1906, with interest from date, and plaintiff company was to make adimncements to said J. W. Ohristenbury in provisions *259 and money to enable him to perform his part of the contract; that at the time of said sale or shortly thereafter, J. W. Ohrist-enbnry and wife N. L. Ohristenbury executed a mortgage to the company with power of sale on the lands of the feme defendant, said mortgage containing the stipulation as follows: “This deed is to be collateral security to a chattel mortgage of eight hundred dollars, and the first payment of two hundred dollars on the same is to cancel this mortgage, then this deed to be null and void, otherwise to be in full force and effect.” That defendant J. W. Ohristenbury entered on the performance of the contract and did a large amount of logging for the company, but the advancements made to him in provisions and money were and continued to be largely in excess of the amount earned even after allowing him fifty cents per thousand more for logging than the amount agreed upon, and defendant J. W. Ohristen-bury having become indebted to plaintiff company over and above any sum earned to the amount of six or seven hundred dollars, and one of the horses worth one hundred and seventy-five to two hundred dollars having died in the meantime, plaintiff company some time in 1907 took back the remainder of the personal property of value at the time five hundred and eighty-seven dollars, leaving as balance due on the mortgage debt of more than two hundred dollars, and thereupon plaintiff company advertised and sold the land as heretofore stated. On these facts, and it clearly appearing that plaintiff Birdsall bid in the land for the company, we think the referee correctly held, “As a matter of law, that no payment as contemplated in the contract has ever been made which would operate as a release or discharge of the mortgage debt of two hundred dollars, and that J. W. Ohristenbury as principal and N. L. Christ-enbury as surety to his debt of two hundred dollars, are due the Piedmont Springs Lumber Company the sum of two hundred dollars, with interest thereon from 17 July, 1906, and that the plaintiff lumber company is entitled to a foreclosure of the said mortgage to satisfy the said debt, interest and costs.” “2. I find as a matter of law that no title passed to the plaintiff A. C. Birdsall at the mortgage sale.” The mortgage on the land in express terms purports to be *260 collateral security to tbe chattel mortgage. This m ordinary acceptation should be an additional security to the property contained in the mortgage. It does not appear at all that the personal property was taken back in cancellation of the trade; the horse that died was the loss of the purchaser and owner J. W. Christenbury, and to hold, as defendant contends, that the value of the personal property taken back should be received in exoneration of the mortgage on the realty would be in effect to hold that this last amounted to nothing. Nor is there any merit in the position that the feme defendant is relieved by delay on the part of the company in enforcing its claim under the chattel mortgage. The authorities are to the effect that mere indulgence of the principal debtor without any binding agreement to do so, will not release the surety. Jenkins v. Daniels, 125 N. C., p. 161; Deal v. Cothran, 66 N. C., p. 269; Thornton v. Thornton, 63 N. C., p. 211. There was error in the judgment of the court below, and on the facts established plaintiff company is entitled to judgment of foreclosure and it is so ordered. Reversed.