Sanders v. . Hamilton

*45 Stacy, C. J. The question for decision is whether the due date of the note in suit was accelerated by plaintiff’s instruction to foreclose the deed of trust, not only for the purpose of enforcing the lien, hut also as affecting the statute of limitations in respect of the note. It should he borne in mind that the acceleration clause appears only in the deed of trust, and not in the notes. Indeed, the notes are negotiable on their face with nothing to show they were secured by lien of any kind. A negotiable instrument in the course of trade is supposed to be a “courier without luggage”—Mordecai. Nevertheless, it is established by the decisions on the subject that an acceleration clause in a mortgage or deed of trust securing bonds or notes containing no such stipulation, operates on the secured bonds or notes, at least to the extent of rendering the debt due for the purpose of foreclosing on default. Brown v. Osteen, 197 N. C., 305, 148 S. E., 434; Meadows Co. v. Bryan, 195 N. C., 398, 142 S. E., 487; Walter v. Kilpatrick, 191 N. C., 458, 132 S. E., 148; Miller v. Marriner, 187 N. C., 449, 121 S. E., 770; Barbee v. Scoggins, 121 N. C., 136, 28 S. E., 259; Whitehead v. Morrill, 108 N. C., 65, 12 S. E., 894; Capehart v. Dettrick, 91 N. C., 344. Of course, if the acceleration clause appear on the face of the bonds or notes, the question presently presented would not arise. Humphrey v. Stephens, 191 N. C., 101, 131 S. E., 383. The out-of-state cases on the subject are inharmonious. They divide on whether the debt evidenced by the bonds or notes is matured for purposes other than foreclosure. Annos. 34 A. L. R., 848; 34 A. L. R., 897; 161 A. L. R., 1211. Indeed, in our own decisions may be found some expressions difficult of reconciliation. Bank v. Trust Co., 199 N. C., 582, 155 S. E., 261; Gore v. Davis, 124 N. C., 234, 32 S. E., 554; 34 A. L. R., 858. The rationale of the North Carolina cases seems to be that where the bonds or notes arc unconditional on their face, the acceleration clause in the mortgage or deed of trust given to secure their payment will operate to advance the maturity of the debt for the purpose of foreclosing on default, but not as affecting the running of the statute of limitations on the bonds or notes. Brown v. Osteen, supra; Meadows Co. v. Bryan, supra; Walter v. Kilpatrick, supra; Dry-Kiln Co. v. Ellington, 172 N. C., 481, 90 S. E., 564; 34 A. L. R., 897. Moreover, it appears that following plaintiff’s abortive attempt at foreclosure he advised the defendants “not to leave, but to stay on.” This was an abandonment of the election to foreclose, and restored the status quo ante. 34 A. L. R., 899-900; 161 A. L. R., 1219. In this view of the matter it would seem that the correct result was reached in the court below. No error.