Latham v. . Whitehurst
Supreme Court of North Carolina
This was a civil action commenced the 4th of October, 1869, to foreclose a mortgage given by the defendant, benring date in the year 1854, to secure the payment of notes of the defendant, due at the date of the mortgage, tried before Watts, J., at the January (Special) Term, 1873, of Craven Superior Court.
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This was a civil action commenced the 4th of October, 1869, to foreclose a mortgage given by the defendant, benring date in the year 1854, to secure the payment of notes of the defendant, due at the date of the mortgage, tried before Watts, J., at the January (Special) Term, 1873, of Craven Superior Court. The defendant demurred to the complaint, and assigned as cause of demurrer that it did not appear upon the face of the complaint that at the time of the commencement of the action the debt secured by the mortgage had been reduced to judgment. There was a joinder in the demurrer. His Honor…
1Opinion of the CourtPearson, 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 nut only attempts to impair the obligation of a contract, but tp 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.…
2Cases cited1 opinion
- Jacobs v. . SmallwoodSupreme Court of North Carolina · 1869
3Cited by2 opinions
- Berdanatti v. SextonCourt of Appeals of Tennessee · 1877
- Southern Railway Co. v. Cherokee CountySupreme Court of North Carolina · 1919