Serls v. . Gibbs

BROgdisN, J. The defendants, trustees, at the request of their codefend-ant, E. K. Carroll, undertook to exercise the power of sale in a deed of trust executed on 8 February, 1905, securing four notes, the last of which matured on 8 February, 1909. One of said notes had been paid by the deceased mortgagor during his lifetime, and after his death in 1912 his children and widow remained in possession of the property. The action was instituted on 25 January, 1932, to restrain the sale advertised for that date. The restraining order was continued until the hearing and the cause was duly heard at term. The defendants contend that the verdict having established that the notes described in the complaint had not been paid that the plaintiff was not entitled to have the sale restrained without paying the amount of the indebtedness upon the familiar equitable principle that “he who seeks equity must do equity.” This Court has consistently held that a mortgage or deed of trust follows the debt and is an incident thereto and security therefor. Furthermore, C. S.., 437, subsec. 3, established a bar to the foreclosure of a *248 mortgage “after tbe power of sale became absolute or within ten years after the last payment on the same.” And C. S., 2589 further provides that the power of sale in any mortgage or deed of trust “shall become inoperative, and no person shall execute any such power when an action to foreclose such mortgage or deed of trust . . . would be barred by the statute of limitations.” It is manifest that the debt was barred; that is, unenforceable in the courts of this State, and the power of sale was barred by reason of the express mandate of the statute. Indeed, the question involved has been heretofore determined by correct interpretation of the principles of law contained in the following cases, to wit, Graves v. Howard, 159 N. C., 594, 75 S. E., 998; Humphrey v. Stephens, 191 N. C., 101, 131 S. E., 383; Meadows v. Bryan, 195 N. C., 398, 142 S. E., 487. The plaintiff did not appeal from the instruction given by the trial judge upon the first issue, and consequently that phase of the case is eliminated. Affirmed.