Hoff v. . Crafton

Smith, C. J. (After stating the case as above.) The appellants in the argument here insist: 1. That the action had terminated in the Probate Court and the Probate Judge had no further jurisdiction to proceed in the case. 2. That the present proceeding -was in substance if not in fact to foreclose a mortgage which a Probate Court had not cognizance to hear and determine. 3. That the mortgagor George E. Roebuck was a necessary party. 4. That if sold the land must be sold according to the terms of the mortgage and for cash only. We propose to notice these several objections successively:— The action is not ended as long as any thing remains to be done. Here, the notes were unpaid and the security for *595 their payment was in the hands of an officer of the Court. We have decided at this term, in Lord v. Beard, ante, 5, that where a clerk and master who was also guardian to the infant whose lands were sold by a decree of the Court of Equity, took the note payable to himself as guardian from the purchaser, the only remedy for its payment was a motion in the cause and an independent action on the note could not be sustained. To same effect are Council v. Rivers, 65 N. C., 54, and Mauney v. Pemberton, 75 N. C., 219. The second objection rests upon an entire misconception of the facts of this case. It is not in any sense a proceeding to foreclose a mortgage, nor indeed any independent judicial action. It is simply an order directed to its commissioner having control of a security, to proceed under his deed and convert the property into money to pay the debts secured. The commissioner is an appointee of the Court— acting under its authority and by its sanction — and remains subject to its control until the whole matter is adjusted and closed. Suppose the purchaser had conveyed other real estate to secure the purchase money, could not the Court compel the commissioner to exercise the power of sale conferred on him in order to the payment of the debt? This case does not differ from the one supposed; The Court issues its mandate to the commissioner to proceed to make the money— and this it clearly had the right, and it was its duty to do. The third exception is disposed of in what has been already said. The commissioner is acting so far as the mortgagor is concerned, as any other mortgagee under a power of sale, and not asking the aid of any Court in its exercise. The fourth exception is well founded. The terms of the sale as prescribed in the mortgage can not be changed by the Court without the consent of all parties interested. The mortgage is a contract and is inviolable as well against the action of the Court as any one else. The Court could only order its commissioner to proceed under it according to its *596 provisions, and no inconvenience or loss likely to be incurred by a sale for cash, can authorize a sale on any other terms by the commissioner. We are not now referring to a judicial proceeding to foreclose, but to the facts of our own case. The departure from the requirements of the mortgage is unauthorized, and the order in this particular erroneous. Nor should the case have been remanded until the issues of fact sent up were tried. It was the .duty of the Judge to proceed to have these issues passed on and decided first; .and then, after correcting the error of the Probate Court in so far as its order varied the terms of sale prescribed in the mortgage, to i’emand the cause to be proceeded with and closed. In this respect there is error in the judgment below, and the cause will be remanded to be proceeded 'with in conformity to this opinion. Error. Judgment reversed and case remanded.