Costs — Mortgagor and Mortgagee.
Where a mortgagor brought an action against the mortgagee for foreclosure and an account of the balance due on the secured debt, and of the rents and profits received by the mortgagee while in possession, which the latter resisted, but it was ascertained that there was a still a balance due the mortgagee, and a decree was made directing the land to be sold, if the said balance was not paid within a time prescribed. Held: (1) That the plaintiffs were entitled to recover their costs of the action. The Code, sec. 525. (2) That if the plaintiffs failed to pay, and thereby made a sale necessary, the costs thereby should be deducted from the proceeds of sale.
SMITH, C. J.
The action was commenced against George W. Willoughby, the mortgagee, by the issue of a summons on 28 March, 1878, which was served on him in April thereafter by the plaintiffs, the widow and heirs at law of Jacob Bruner, the mortgagor, with the husbands of two of the married daughters. Soon after the service of the process Willoughby died intestate, and a summons issued against the defendants, who are his administrators, surviving wife, a married daughter, and her husband.
They resisted the plaintiffs' claim, and in their answer set up defenses to the action, thus rendering the suit necessary to the enforcement of the plaintiffs' rights as declared and established at the trial. In this way, and in taking the accounts of the rents and profits, which the defendants' ancestor in his life time and themselves as maintaining (227) the possession since, are chargeable with the costs which have been incurred in reduction of the mortgage debt. The costs, therefore, ought to fall upon the unsuccessful party to the controversy which springs out of the action, and so the statute adjudges. The Code, sec. 525.
Of course the ruling as to the taxation of costs, made when the decree of sale is entered, is understood to have reference to such as then had accrued, and upon the supposition that the debt is paid within the limited time therein.
Should the sale take place in consequence of the plaintiffs' default it would seem reasonable that the costs of the sale should come out of proceeds of sale, and such we assume will be the action of the court when such exigency arises.
There is no error, and this will be certified to the court below.
No error. Affirmed.
Cited: Patterson v. Ramsey, 136 N.C. 567; Williams v. Hughes, 139 N.C. 20; Yates v. Yates, 170 N.C. 536.