Howell v. . Pool

SMITH, C. J. (after stating the facts). Many reasons are suggested in the complaint why the court should interpose in the attempted exercise of the power conferred in the mortgage, such as the mental and physical condition of the mortgagor, and the injurious consequences to him that may ensue, and the unfavorable time for making sale, which cannot enter into our consideration of the right of the creditor to enforce payment of his debt, through the means placed at his disposal by the debtor. The objection to the insufficient manner of advertising the intended sale, and to other informalities in connection with it, are put out of the way by the interference of the restraining order that prevented a sale. There is no support to the charge of usury found in any provisions of the deed, in the absence of proof of an usurious intent. The compensation to be retained from the proceeds of sale fixed by the parties, is manifestly for his services in executing the trust, and not a part of the consideration for the loan — contingent upon the necessity of exercising the power conferred. We are not disposed to sanction the provision thus understood, at least when, at such sale, the mortgagee undertakes to become the purchaser. The act, if legally effectual for any purpose, would operate, not as a transfer of the estate unencumbered, but as the extin- *453 guishmeut of the equity of redemption, and there would properly be no moneys from which-commissions could be taken. But the sale of the mortgagee to himself, directly or through an intervening agency, would be ineffectual, and the title would remain undisturbed. “ Once a mortgage always a mortgage,” is a maxim in equity, remarks Pearson, C. J., in Whitehead v. Hellen, 76 N. C., 99, while considering the subject, and he asks, “how has the defendant (mortgagor) lost his equity of redemption? what price has been paid for it?” But as the matter has now passed under the jurisdiction of the court-, and the sale, if necessary, will be conducted by a commissioner under its supervision, the inquiry as to the effect of this clause of the deed is. immaterial, as the court- will make such allowance as it deems reasonable and adequate for the service rendered. The case does not present complicated accounts and unadjusted dealings so as to come within the rulings made in Kornegay v. Spicer, 76 N. C., 95; Mc Corkle v. Brem, 76 N. C., 407; Capehart v. Biggs, 77 N. C., 261; Purnell v. Vaughan, 77 N. C., 268; Pritchard v. Sanderson, 84 N. C., 299, and other cases of the same class. There are here no complicated, relations between the parties, no unadjusted account to be settled. There is a debt of definite amount represented by the plaintiff’s bond, enlarged by fire insurance money and taxes paid by the defendant, which ought to have been paid by the plaintiff, with several payments, and no item, except a small charge which is surrendered, about which there is any controversy. The balance due is a simple matter of arithmetical computation. This has been made and embodied in an account rendered the plaintiff, from which the objectionable charge is eliminated. There can be no litigation about the provision for compensation to the mortgagee for making the sale, since it will be made, if at all, under the direction of the Court by one of its own appointees, for whose services allowance may be made by the Court, and so also there can be *454 no injustice or wrong clone to the plaintiff in carrying out his own agreement. The evidence, much of which is needless repetition, and consists in details that have little bearing on the controversy, furnishes no reason to induce the Court to delay longer the enforcement of the mortgagor’s obligation. Such forms of securities whereby the creditor is invested with full control of the property, instead of committing the execution of the trusts to á disinterested and impartial trustee, are not favored, and are tolerated, in the words of Pearson, C. J., in Kornegay v. Spicer, supra, “after much hesitation, on the ground that in a plain case where the mortgage debt was agreed on, and nothing was to be done except to sell the land, it would be a useless expense to force the parties to come into equity, when there were no equities to be adjusted, and the mortgagor might be reasonably assumed to have agreed to let a sale be made after- he should be in default.” We therefore concur in the refusal of the Judge to grant an injunction to operate until the hearing, and in his vacating the restraining order previously issued. The Court, being now in possession of the cause, will proceed to a judgment of foreclosure, if so required by the defendant. And to this end, let this be certified to the Superior Court of Wake. The appellant will pay the cost of the appeal. No error. Affirmed.