Pritchard v. . Sanderson

SMITH, C. J. It is unnecessary to consider in. detail the allegations and denials reciprocally made in determining the point arising on the appeal. Nor can we receive as evidence the unsworn answers put in by the other defendants. On hearing the motion, His Honor ruled that if the plaintiffs within a limited period paid into the office the sum admitted to be due with interest from January 1st, 1880, the injunction should be continued to the final hearing, and if they failed, it should stand dissolved, and the trustee should proceed to sell the lands. From this order the defendants appeal. It is conceded in the argument for the appellants that the ruling below is fully sustained by the adjudications in Kornegay v. Spicer, 76 N. C., 95; Mosby v. Hodge, Ib., 387, and Capehart v. Biggs, 77 N. C., 261; unless this case is distinguishable in some essential feature from those. The practice where there is a controversy as to the sum due under the mortgage or deed in trust is thus declared by PjsaRSON, C. J., in Mosby v. Hodge: “ The exercise of the power (of sale) *303 is only allowed in plain cases 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 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 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 any idea that they are buying a law suit.” To same effect is Purnell v. Vaughan, 77 N. C., 268. The distinction attempted to be drawn is, that the full settlement had between the parties in May, 1872, and the execution of a new note for the amount then admitted to be due, with the recitals in the deed made to secure it, concludes all inquiry into antecedent matters, and operates as an estoppel upon the plaintiffs and determines finally what was then due ; and as the alleged subsequent payments are not disputed, the indebtedness is but a matter of arithmetical calculation, requiring no reference and no delay. Undoubtedly at law such estoppel will rise, and so the cases cited decide. Brinegar v. Chaffin, 3 Dev., 108; Hays v. Askew, 5 Jones, 63. But in equity the rule is otherwise, and deceit and fraud superinducing the execution of a deed may be inquired into to defeat its operation and relieve the deluded and injured party from its obligation. This is one of the most valuable functions of a court of equity, and perhaps more often called into exercise than any other. The principle is illustrated in Wesson v. Stephens, 2 Ired. Eq., 557, and we deem further references needless. Besides the reason given by the late chief justice for the rule, it may be added that the mortgagor ought to know definitely what sum he is required to pay and have an opportunity to redeem without a sale. There is in the present *304 case a wide discrepancy in the estimates made' by the parties'as to the amount of the secured debt, and this controversy ought to be decided before a süle is permitted. We do not undertake to pass upon its merits, or say that the plaintiffs can successfully impeach the settlements relied on by the executrix, but merely, that they ought to have an opportunity to do so, and meanwhile the sale should be suspended. The ruling of the judge'below is quite as favorable to the defendants as they have a right to ask, and in our opinion is obnoxious to- no just complaint from them. We therefore declare there ispo error in the interlocutory judgment rendered, and this will be certified that the cause may proceed in the court below. No error. Affirmed.