#### L. M. MILLER, Executor of the Estate of J. H. MILLER, Deceased, v. MRS. EUGENIA SHORE and Husband, WALTER A. SHORE; WILLIAM F. MILLER and Wife, LUCY MILLER; MRS. BERTIE MILLER, L. M. MILLER and Wife, MAUDE E. MILLER; MRS. EMMA E. MILLER, Heirs of J. H. MILLER, and JOHN J. INGLE, Trustee, and DR. E. F. STRICKLAND.

(Filed 20 June, 1934.)

Mortgages H lb — Executor may not restrain foreclosure of mortgage on testator’s land pending sale of land to mate assets.

An executor may not restrain the foreclosure of a deed of trust executed by his testator prior to his death upon the executor’s petition for sale of the lands to make assets, when by the terms of the deed of trust the trustee is authorized to advertise and sell the lands, the right of the trustee to sell the lands being contractual, and the sale by the trustee being subject to the provisions of chapter 276, Public Laws of 1933.

Appeal from Hill, J., at 16 April Term, 1934, of Forsyth.

Reversed.

Part of tbe judgment of tbe court below is as follows: “It is further considered, ordered, and adjudged by tbis court tbat tbe said John J. Ingle, trustee, and tbe said Dr. E. F. Strickland, tbeir servants, agents and employees, be and tbey are hereby enjoined and restrained from selling, or offering for sale, tbe real estate described in tbe petition under tbe deeds of trust executed by J. H. Miller and wife, Emma E. Miller, to John J. Ingle, trustee for Dr. E. F. Strickland, and recorded in tbe office of tbe register of deeds of Forsyth County, North Carolina, in Book No. 256, of deeds of trust, at page 2, and Book No. 296, of deeds of trust, at page 164.”

Tbe only material exception and assignment of error made by defendants, John J. Ingle, trustee, and E. F. Strickland, is tbe signing of tbe judgment by tbe court below. Tbe material facts will be set forth in tbe opinion.

W. T. Wilson for plaintiff, L. M. Miller, executor.

Ingle & Bucher for defendants, John J. Ingle, trustee, and E. F. Strickland.

ClaeksoN, J.

Tbe material facts are as follows: On 25 January, 1929, tbe plaintiff’s testator and bis wife borrowed $5,000 from tbe defendant Strickland and executed a deed of trust conveying 123 acres of farm land to tbe defendant Ingle to secure tbe payment of tbe loan one year after date. Tbe deed of trust was duly recorded. Tbe testator died on 17 May, 1933, leaving a will devising tbe farm lands to bis children, among whom is L. M. Miller, tbe plaintiff and executor of the will. Payments aggregating $450 are all tbe defendant Strickland has received since tbe date of tbe loan. Tbe last payment made by tbe *733testator was a payment of $200, made on 20 April, 1931. Tbe plaintiff, bis son and now executor of bis will, made four payments of $25.00 eacb during tbe period from tbe first payment on 7 November, 1932, to tbe last payment on 27 Marchj 1933. Tbe debt, with accrued interest, as of 15 September, 1933, was $5,871.67. Trustee Ingle, on 3 December, 1933, began to advertise tbe lands for sale at foreclosure on 2 January, 1934. On 29 December, 1933, tbe executor filed a petition witb tbe clerk of tbe Superior Court for authority to sell tbe lands for assets to pay debts, and prayed for an order restraining tbe defendants Ingle and Strickland from selling tbe lands at foreclosure. Sucb an order was issued on tbat day by tbe clerk and made permanent by tbe clerk on 19 February, 1934. On appeal to tbe judge of tbe Superior Court, tbe court signed and entered tbe judgment as appears of record.

We tbink it immaterial to consider wbat discretionary powers tbe court below bad on appeal to tbe Superior Court. Tbe obligation secured by deed of trust was a contract between tbe parties.

In Leak v. Armfield, 187 N. C., 625 (628), speaking to tbe subject, tbis Court said: “It nowhere appears in tbe record tbat Cbase Boren consented to tbe procedure in wbicb sbe was made a party or waived any right. Tbis being so, from tbe facts found by tbe court below as a matter of law, we tbink tbat the restraining order ought not to have been granted. If subsequent judgment creditors or litigants over tbe equity of redemption could ‘tie up’' a first mortgage and effect its terms, it would seriously impair a legal contract. It may be ‘bard measure’ to sell, but tbis is universally so. Tbe mortgagee bas a right to have her contract enforced under tbe plain terms of tbe mortgage. To bold otherwise would practically nullify tbe present system of mortgages and deeds in trust on land, so generally used to secure indebtedness and seriously hamper business. Those interested in tbe equity of redemption have tbe right of paying off tbe first lien when due. We can see no equitable ingredient in tbe facts of tbis case. Tbe mortgage is not a ‘scrap of paper.’ It is a legal contract tbat tbe parties are bound by. Tbe courts under their equitable jurisdiction, where tbe amount is due and ascertained — no fraud or mistake, etc., alleged — have no power to impair tbe solemn instrument directly or indirectly by nullifying tbe plain provisions by restraining tbe sale to be made under tbe terms of tbe mortgage.”

Tbe trustee, when be sells, bas to do so in accordance -with C. S., 2591. Tbe statute, Public Laws, 1933, chapter 275, is applicable and held constitutional in Woltz v. Safe Deposit Co., ante, 239; Alexander v. Boyd, 204 N. C., 103; Whitaker v. Chase, ante, 335; Hopkins v. Swain, ante, 439. For tbe reasons given, tbe judgment of tbe court below is

Reversed.