Guthrie v. . Moore

Alien, J. It is admitted in tbe brief of tbe defendants that tbe notes purchased by the defendant Moore and secured by one of tbe deeds of trust under wbicb tbe defendants proposed to sell tbe lands in controversy, were past due at tbe time of tbe purchase, and tbis being true, tbe defendant took tbe notes subject to and witb notice of any equities and defenses existing in favor of the plaintiff against Godley, who sold tbe notes to tbe defendant Moore. • (C. S., 446; Capell v. Long, 84 N. C., 17), and as against Godley, tbe plaintiff has tbe right to rely upon tbe agreement that tbe prior liens created by tbe deed of trust to secure tbe notes to Patrick and Moore should be paid off and discharged before all of tbe notes secured in tbe last deed of trust should be valid obligations .against tbe plaintiff. *26 It is also well settled that powers of sale “are looked upon by the courts with extreme jealousy, because the mortgagor is thereby put entirely in the power of the mortgagee. The exercise of the power is only allowed in plain eases when there is no complication and no controversy as to the amount due upon the mortgage debt, and the power is given merely to avoid the expense of foreclosing the mortgage by action; but that where there is such complication and controversy the Court will interfere and require the foreclosure to be made under the direction of the Court, after all the controverted matters have been adjusted and the balance due is fixed, so that the property may be brought to sale when purchasers will be assured of a title and not be deterred by the idea that they are ‘buying a lawsuit.’ ” Mosby v. Hodge, 76 N. C., 388. It follows therefore as there was a real dispute between the parties as to the amount for which the plaintiff was liable, that the restraining order was properly continued until the final hearing. Affirmed. Note. This opinion was written in accordance with the Court’s, decision and filed, by order of the Court, after Justice Allen’s death. 14 September, 1921. Stacy, J.