The 9th section of the Act of 1868-'69, chap. 76, which enacted that "no property shall be sold under any deed of trust or mortgage, until the debts secured in said deed are reduced to judgments according to the provisions of this act," was unconstitutional, because it not only attempted to impair the obligation of a contract, but to alter it by adding a condition. (The above section was repealed by the Act of 1869-'70, chap. 28.)
In an action to foreclose a mortgage, the Judge may, if necessary, refer the matter to the clerk to settle the details and report the balance due, but if nothing is to be done except to calculate interest, the Judge may do it himself, or direct the clerk to do it instanter, and give judgment accordingly.
The case of Jacobs v. Smallwood, 63 N.C. 112, cited and approved.
PEARSON, C. J.
The demurrer rests upon the Acts of 1868-'69, chap. 76, sec. 9, "No property shall be sold under any deed of trust or mortgage until the debts secured in said deed are reduced to judgments according to the provisions of this Act."
This section is in violation of the Constitution of the United States; it not only attempts to impair the obligation of a contract, but to alter the contract, by adding a condition. This is too plain for discussion. The purpose of adding this condition, was to bring all debts within the operation of the "stay laws." In reference to laws of that kind see Jacobs v. Smallwood, 63 N.C. 112.
The other objection is likewise untenable; the judge may if so needed, refer the matter to the clerk to settle the details, and report the balance. This is the usual course, and ought to be followed when there is any complication, so that the subjects of controversy may be distinctly presented on exceptions to the report.
But where there is nothing to be done except to calculate interest, we see no reason why the Judge may not make the calculation himself, or direct the clerk to do it instanter, as when judgment is rendered "according to specialty filed" in an action of debt.
The defendant certainly has no right to the former course, for the voluntary service of the Judge saves him from the cost of a reference to the clerk.
No error.
PER CURIAM. Judgment affirmed.