Edwards v. . Hair

BabNhill, J. In her action the plaintiff seeks also to have declared void and cancelled as a cloud on her title a tax deed from Robeson County to the plaintiff. No question in respect to this feature of plaintiff’s case is at issue on this appeal. On the issue submitted the court charged the jury: “The burden is upon the defendant upon that issue, gentlemen, to satisfy you from the evidence and by the greater weight of the evidence, that the mortgage was not barred by the statute of limitations.” In this there was error. The case at bar is not one in which it is alleged by the defendant that the plaintiff has brought a stale cause of action into court. The cases which hold that under such circumstances the burden is on him who asserts the claim to show that it is not barred by the statute of limitations pleaded have no application. *664 There is a presumption of law in favor of regularity in the exercise of the power of sale in a mortgage or deed of trust. Jenkins v. Griffin, 175 N. C., 184, 95 S. E., 166; Berry v. Boomer, 180 N. C., 67. Plaintiff’s action is bottomed upon the allegation that at the time of the execution of the foreclosure deed the power of sale contained in the mortgage had become inoperative under the provisions of C. S., 2589, and that, therefore, the foreclosure deed executed by the mortgagee, or his personal representative, is null and void and vests no title to the premises thus attempted to be conveyed to the grantee in the foreclosure deed. The foreclosure deed is voidable only and not void. Berry v. Boomer, supra. The plaintiff, in her action in attacking the deed, has assumed and must carry the laboring oar. The notes as copied in the record indicate that they are not under seal. The fact that an action on the debt may be barred does not necessarily mean that the right of foreclosure has become inoperative under the provision of C. S., 2589. “It is well settled that an action upon the debt may be barred without affecting the right to maintain an action to foreclose a mortgage to secure it. Capehart v. Dettrick, 91 N. C., 344. This is because the bar of the statute affects only the remedy and not the right.” Menzel v. Hinton, 132 N. C., 660, 44 S. E., 385; Jenkins v. Griffin, supra. If the note is not under seal it may be barred in three years, and yet the mortgage securing it might not be barred in less than 10 years. Jenkins v. Griffin, supra. Plaintiff’s contention that the payment of 27 October, 1933, if made at all, was made by J. F. Edwards and not by the plaintiff, and that, therefore, it does not repel the statute of limitations as to her, cannot be sustained. At the time of the execution of the mortgage title to the premises was in the plaintiff and her husband, J. F. Edwards. He is a comaker of the notes and of the mortgage. It is well settled in this State that a payment by one of two or more principals before the bar of the statute repels the statute of limitations as to all persons in the same class. As between comakers and makers and sureties there is a community of interest and a common obligation such as to make a payment by one repel the statute as to all. Dillard v. Mercantile Co., 190 N. C., 225, 129 S. E., 598, and cases there cited. If a payment was made in 1933, as contended by the defendant, then at that time the power of sale was not barred and the payment served to stop the running of the statute of limitations as to all those who were principals in the execution of the mortgage. The charge of the court upon the issue submitted was prejudicial error entitling the defendant to a New trial.