Doggett Lumber Co. v. Conrades

BbogdeN, J. The trial judge found as a fact that the note secured by the deed of trust was past due and that there was no allegation that the trustee in said deed of trust was insolvent. The execution of the note *628 and deed of trust was admitted and there is no allegation of fraud, restraint, oppression or usury in the transaction. The trial judge was therefore correct in refusing to restrain the sale of the land in accordance with the terms of the deed of trust and in accordance with the tenor of the note secured thereby. Ordinarily, an injunction will not be granted in eases of this kind where there is no allegation of insolvency. McNamee v. Alexander, 109 N. C., 242, 13 S. E., 277; Land Co. v. Webb, 117 N. C., 479, 23 S. E., 458; Wilson v. Featherstone, 120 N. C., 449, 27 S. E., 121; Rope Co. v. Aluminum Co., 165 N. C., 572, 81 S. E., 771. However, the court in proper instances has power to restrain sales of real estate attempted to be made in pursuance of the terms of a mortgage or deed of trust. Hayes v. Pace, 162 N. C., 288, 78 S. E., 290. The principle of law covering the merits of this case is thus declared by Clarkson, J., in Leak v. Armfield, 187 N. C., 625, 122 S. E., 393. “The mortgagee has a right to have her contract enforced under the plain terms of the mortgage. To hold otherwise would practically nullify the present system of mortgages and deeds in trust on land, so generally used to secure indebtedness and seriously hamper business. Those interested in the equity of redemption have the right of paying off the first lien when due. We can see no equitable ingredient in the facts of this case. The mortgage is not a 'scrap of paper.’ It is a legal contract that the parties are bound by. The courts, under their equitable jurisdiction, where the amount is due and ascertained — no fraud or mistake, etc., alleged- — have no power to impair the solemn instrument directly or indirectly by nullifying the plain provisions by restraining the sale to be made under the terms of the mortgage.” Affirmed.