Arrington v. . Rowland

Merrmok, J., (after stating the facts). The very purpose of the deed of trust was to recognize and secure an anticipated indebtedness of the testator of the defendants to the testator of the plaintiffs, and others, his co-sureties of the testator of the defendant, that might arise out of the surety-ship distinctly mentioned and described. The defendants’ testator covenanted, certainly in effect, and stipulated in the deed, to pay the testator of the plaintiffs the sum of money, whatever it might turn out to be, he might have to pay or advance for him, as contemplated *131 by the deed, and this as certainly and effectively as if the same had been ascertained and set forth in the deed itself. It was further mutually covenanted between the parties, that the testator of the defendants should have the right to cultivate the land embraced by the deed, if need be, during his life-time, paying off the anticipated indebtedness, so much as he could, after paying the expenses of cultivation, out of the proceeds of the crops to be produced from year to year; and if the indebtedness should not be wholly discharged thus by him, then, after his death, the land should be sold to pay the balance then remaining unpaid. The covenant to pay the indebtedness provided for, was a continuing one, and the right of the testator of the plaintiffs, or of his executors, to sue, did not accrue until the death of the testator of the defendants. Until then, the plaintiffs could not execute the power of sale contained in the deed, nor could they sue for and recover the money to come due. In the absence of the deed or other like provision, the money paid by the plaintiffs on account of the suretyship mentioned, would have been a debt due by. simple contract, and therefore barred by the statute of limitation; but by the express agreement of the parties to the deed, it becomes a debt due by covenant, due and actionable only at the death of the testator of the defendants. If the debt secured by the deed of trust had been independent of, and apart from the deed, as contended by the ■defendants, the plaintiffs could have the right to have the trust executed. The Court would not in that case deny the plaintiffs this remedy, simply on the ground that the debt intended to be secured is barred by the statute of limitation. Capehart v. Detrick, 91 N. C., 344. We therefore are of opinion, that there is error, and that the plaintiffs are entitled to a new trial, and so adjudge. To that end, let this opinion be certified to the Superior Court according to law. It is so ordered. Error. Reversed.