#### MRS. MAIE DENNIS v. ANTHONY REDMOND, Successor trustee, and THOMAS H. LEATH, Attorney.

(Filed 16 December, 1936.)

1. Appeal and Error F b—

A sole exception to the judgment rendered presents the single question of whether the judgment is supported by the findings of fact, and the judgment will be affirmed when it is regular upon its face and is supported by the findings.

2. Injunctions D h—

Where the undisputed facts are sufficient to support a decree dissolving the temporary restraining order entered in the cause, an exception on the *781ground that the order should have been continued for a jury trial upon the disputed facts is untenable.

3. Mortgages H b — Admitted facts held sufficient to support finding that debt was in default, and dissolution of restraining order was proper.

In this suit to restrain foreclosure instituted by the grantee in a deed assuming the payment of the debt secured by a deed of trust on the lands, it appeared that the debt was in default and that no payment had been made thereon for about three years, even giving plaintiff credit for amounts paid by her plus an amount received by the cestui from the proceeds of a fire insurance policy on the property, and that the cestui had paid taxes and insurance and had properly credited plaintiff with the credits claimed by her. Held: It was not error for the court to find that the debt was in default and to dissolve the temporary restraining order entered in the cause, there being no facts in dispute sufficient to warrant the continuation of the restraining order for a jury trial.

4. Same—

An allegation that several concerns had made demand on plaintiff for payments on the indebtedness secured by a deed of trust assumed by plaintiff is insufficient to restrain foreclosure of the deed of trust when it appears that each of the various concerns represented the holder of the notes.

5. Same — Plaintiff held not entitled to restrain foreclosure for an accounting under the facts of this case.

Where it appears that plaintiff seeking to restrain the foreclosure of a deed of trust had not paid anything on the indebtedness for about three years, that she could have easily ascertained the amount of insurance collected by the cestui on the policy of fire insurance on the property which the cestui had allowed as a credit on the debt, and could have ascertained the amount of insurance and taxes paid by the cestm and added to the debt, plaintiff is not entitled to restrain the foreclosure for an accounting to ascertain the exact amount of the indebtedness in the absence of a tender of some amount to the cestui.

6. Same—

The holder of notes secured by a deed of trust may foreclose the property in the hands of a purchaser from the trustor assuming the payment of the debt without first filing claim with the personal representative of the deceased maker of the notes.

Appeal by plaintiff from Rousseau, J., at Chambers in Wadesboro, on 14 September, 1936. From EichMONd.

Affirmed.

This is a proceeding brought by plaintiff against defendants to restrain them from selling certain real property under power contained in a deed of trust. A temporary restraining order was duly issued and the cause came on to be heard on motion of plaintiff to continue the restraining order to the hearing.

The judgment of the court below is as follows: “This cause coming-on to be heard, and being heard on 14 September, 1936, by his Honor, *782J. A. Rousseau, Judge presiding oyer the courts of tbe Thirteenth. Judicial District, in Chambers at "Wadesboro, N. C., the motion of the plaintiff for a restraining order to be continued to the hearing haying been continued, by consent of all the parties, to this date and place: And it appearing to the court and the court finding facts as follows:

“(1) That on 18 January, 1930, .Mrs. Maie Dennis executed and delivered to J. R. Henderson a deed conveying the lands set out and described in the complaint filed herein and used as an affidavit, which deed was recorded on 20 March, 1930, in Book 207, page 123, Richmond County registry; that J. R. Henderson and wife, on 15 February, 1930, executed and delivered to the Commercial National Bank of High Point, N. O., their deed of trust to secure the payment of a note in the amount of $3,150, said note being made payable to bearer at the office of the Charleston National Bank, Charleston, West Virginia; that said deed of trust was recorded on 6 March, 1930.

“(2) That on 6 March, 1930, J. R. Henderson and wife reconveyed the land described in the complaint to the plaintiff herein by deed recorded in Book 207, page 237, Richmond County registry.

“(3) That thereafter J. R. Henderson died, to wit: On 26 May, 1930, and E. N. Rhodes was duly appointed collector of the estate of the said J. R. Henderson, and thereafter filed his final report showing assets in hand of only $59.11, no executor or administrator having ever qualified, the report of said E. N. Rhodes, collector, being duly filed in Record of Settlements No. 4, page 348, office of the clerk of the Superior Court of Richmond County, File No. 898-A, a copy thereof being hereto attached.

“(4) That from 2 April, 1930, through 21 June, 1933, the plaintiff made payments aggregating $660.00.

“(5) That on 21 November, 1933, the Commercial National Bank of High Point, N. C., trustee, and John Biggs, receiver, advertised the land described in the complaint, and described also in the aforesaid deed of trust for sale on 23 December, 1933, and that on 14 December, 1933, Hon. A. M. Stack, one of the judges of the Superior Court, issued a temporary restraining order restraining the sale; that as a basis for said restraining order the plaintiff herein filed an affidavit and complaint wherein she alleged the execution and delivery of the deed of trust here-inabove referred to, to secure the payment of the note payable to bearer, and further alleged, 'The notes being made payable to bearer, but in fact were made payable to the Commercial National Bank of Charleston, West Virginia, whose place of business was at Charleston, West Virginia; that thereafter, on or about 6 March, 1930, the said J. R. Henderson and wife, Jennette Henderson, conveyed by deed to Maie Dennis the property described in the deed of trust; the said Maie Dennis assuming the indebt*783edness thereon’; that the said Maie Dennis made payments as provided in the deed of trust in excess of $600.00 on the original indebtedness of $3,150.

“(6) That, in addition to the payments made by the plaintiff above referred to, the sum of $1,235.84 was collected by the defendant as proceeds of fire loss on 27 December, 1934, as found by Judge Clayton Moore in an order dated 28 May, 1935, a copy being hereto attached as ‘Exhibit A.’

“(7) That the plaintiff has paid no taxes on the property described in the complaint and in the deed of trust to the town of Hamlet or the county of Eichmond for the years 1931 to 1935, inclusive.

“(8) That in May, 1936, the defendant Anthony Eedmond, successor trustee, duly advertised the lands described in the deed of trust for sale under the power contained therein on 1 June, 1936, and that after said sale was held, that the plaintiff Mrs. Maie Dennis, on the 10th day thereafter, raised the bid to $1,575 on said property as by statute provided, and that thereafter the lands were readvertised and reoffered for sale on 3 July, 1936, and temporary restraining order was secured as hereinabove referred to on 13 July, 1936.

“(9) That the plaintiff in the complaint filed herein alleges the due execution and delivery of the deed of trust from J. E. Henderson and wife to secure the payment of the note described therein and secured thereby, and further alleges certain payments, including the collection of $1,235.84 from an insurance company on account of damage to the mortgaged property by fire.

“(10) That while the plaintiff admits certain payments on said note, and that there is a balance due and unpaid thereon, she has not made any tender or offer to pay any amount whatsoever.

“(11) That the plaintiff has not offered to do equity and is not entitled to receive equity or any equitable relief on the showing made at this hearing.

“It is now, on motion of Thomas H. Leath, in propria persona, and of Varser, McIntyre & Henry, attorneys for defendants, considered, ordered, and adjudged that the motion of the plaintiff to continue the restraining order until the hearing be and the same is hereby denied, and that the temporary restraining order heretofore issued in this cause be and the same is hereby in all respects dissolved.

J. A. Eousseau, Judge Presiding."

To the foregoing judgment the plaintiff excepted, assigned error, and appealed to the Supreme Court.

A. A. Reaves and J. G. Sedberry for plaintiff.

Thomas H. Leath and Varser, McIntyre & Henry for defendants.

*784Clarkson, J.

The only exception and assignment of error made by plaintiff is “to the foregoing judgment.” A case where the facts are similar in all respects to the present one is that of Ingram v. Mortgage Co., 208 N. C., 329. At page 330, it is said: “The first exception is to the judgment itself. This judgment is regular upon its face, and the facts found by the trial judge are sufficient to support the decree. Consequently, the first exception must fail. Warren v. Bottling Co., 207 N. C., 313; Moreland v. Wamboldt, ante, 35. The second exception is 'to the finding and signing of the order of the finding of facts.’ It is to be observed that the plaintiff requested no findings of facts and there is no specific exception to any particular finding of fact. Obviously, some of the findings of fact are necessary and beyond question. The Court is not endowed with the gift of prophecy, and, therefore, is unable to determine which particular finding of fact is objectionable to the plaintiff. Hence, the second exception must likewise fail.”

In the record the facts are practically undenied, and those found by the court below are supported by the evidence. On the above authority the judgment of the court below must be affirmed.

As the merits of the cause are urgently argued by the plaintiff, we will consider same. The plaintiff contends: (1) “Did his Honor have a right to pass upon and determine the disputed facts without the intervention of a jury?” On the whole record, we do not think that there were sufficient facts disputed to continue the restraining order to the hearing for a jury to determine.

Hoke, J., in Grantham v. Nunn, 188 N. C., 239 (242), speaking to the subject, says: “In Sutton v. Sutton, supra (183 N. C., 128), wherein the lower court dissolved the restraining order and entered judgment for defendant, the governing principle is stated as follows: 'Upon the hearing by the judge upon the question of continuing a restraining order to the hearing, the judge, upon proper findings (and it may be added on the evidence presented and without findings), may dissolve the temporary order, but in doing so it is error for him also to determine an issue of fact material to the rights of the parties and which should be reserved for the jury to pass upon at the trial.’ ” Tomlinson v. Cranor, 209 N. C., 688. Of course, the litigants may consent that the court try the cause. Hershey Corp. v. R. R., 207 N. C., 122 (125).

The undisputed facts: (1) On 18 January, 1930, plaintiff made and executed a deed to her brother, J. R. Henderson, for the land in controversy, which was duly recorded on 20 March, 1930. (2) J. R. Henderson and wife, on 15 February, 1930, executed and delivered to the Commercial National Bank of High Point, N. C., a deed of trust to secure the payment of a note in the amount of $3,150. Said deed of trust was duly recorded on 6 March, 1930. (3) On 6 March, 1930, J. R. Hender*785son and wife reconveyed tbe land to plaintiff, wbicb deed was duly recorded. (4) Tbe land was advertised for sale under tbe deed of trust and plaintiff, on 14 December, 1933, obtained a restraining order. In ber complaint and affidavit sbe states: “Tbat thereafter, on or about 6 March, 1930, tbe said J. E. Henderson and wife, Jennette Henderson, conveyed by deed to Maie Dennis tbe property described in tbe deed of trust; the said Maie Dennis assuming the indebtedness thereon; tbat tbe said Maie Dennis made payments as provided in tbe deed of trust in excess of $600.00 on tbe original indebtedness of $3,150.”

In Wiltsie on Mortgage Foreclosure (4th Ed.), Yol. 1, sec. 237, is the following: “An agreement by tbe grantee o.f mortgaged premises to assume or pay tbe mortgaged indebtedness, may be embodied in tbe deed, may appear in separate instruments, or may rest in parol. Or tbe agreement may be implied from all tbe facts and circumstances existing in connection with tbe transfer of tbe property, and may appear without any formal promise. . . . Where tbe contract of sale provided tbat tbe purchaser should pay tbe mortgage, be is liable though deed to him merely excepted tbe mortgage from tbe covenant of warranty. An oral agreement by a purchaser to assume or pay a mortgaged indebtedness upon tbe premises is valid and enforceable though tbe conveyance contains no such agreement. (Citing Parlier v. Miller, 186 N. C., 501.) And an oral agreement by a purchaser to assume a mortgaged indebtedness is not within tbe statute of frauds where it has tbe original transfer to support it as a consideration.”

Tbe plaintiff assumed tbe indebtedness in tbe deed of trust, $3,150, and tbe taxes and insurance wbicb were tacked on in tbe deed of trust and made a part of same. In tbe proceeding of 1933 for injunctive relief by plaintiff, sbe alleges tbat sbe paid on tbe $3,150 in excess of $600.00.

Tbe principal of tbe debt was $3,150, there were credits of $660.00 paid in 17 different payments, tbe last 6/21/33. Fire loss draft 12/27/34, $1,235.84, insurance $105.13, taxes $604.60 paid at different times, and interest on advances left a total due 8/15/36 of $3,077.32. Tbe land was duly advertised to pay tbe indebtedness on 1 June, 1936, and bid in by tbe Metropolitan Eealty Company for $1,500. Plaintiff raised tbe bid and tbe property was resold on 3 July, 1936, and bid in by tbe same company for $2,000. Tbe plaintiff did not raise tbe bid, but, within 10 days, on 11 July, 1936, instituted this proceeding and tbe temporary restraining order was secured on 13 July, 1936. From tbe record it appears beyond question tbat tbe above amount is due on tbe note and deed of trust, with taxes and insurance, wbicb plaintiff assumed.

Tbe plaintiff alleges tbat various concerns have made demand on ber for this indebtedness; be tbat so, sbe owes tbe indebtedness and there is *786bo evidence on ber part tbat tbe defendants did not represent tbe owner of tbe indebtedness, and, in fact, defendant Redmond so stated in bis affidavit, “is owned and beld by tbe Charleston National Bank of Charleston, West Virginia, as trustee,” etc., and be was duly appointed substitute trustee in said deed of trust. In tbe proceeding of 1933 for restraining order, plaintiff contended she bad paid in excess of $600.00. She was given credit for $660.00. In ber complaint she alleges tbat a bouse on tbe lot was burned and $1,235.84 was collected as insurance. She has been credited with same on ber indebtedness.

(2) Is tbe plaintiff entitled to an accounting in order to find out tbe balance due on a deed of trust, to which ber ownership of tbe land is subject, without making an actual tender of some sum of money? We think not under tbe facts and circumstances of this case. She has paid nothing on this indebtedness since 1933, up to tbat time she bad paid $660.00. Tbe insurance amount collected was easily obtainable; in fact, in ber complaint she alleges tbe exact amount due on fire loss, $1,235.34. In the exercise of due care she could have ascertained tbe exact amount due, including taxes and insurance, which were tacked on to tbe deed of trust, and tendered same. She was given several years in which to pay this indebtedness, but has not done so. It is said in Wilson v. Trust Co., 200 N. C., 788 (791): “Until this amount, which is in controversy between plaintiff and tbe answering defendants, has been ascertained and definitely determined, plaintiff is entitled to have tbe sale of tbe land described in tbe complaint, under tbe power of sale contained in tbe deed of trust, enjoined and restrained. Parker Co. v. Bank, ante, 441, 157 S. E., 419.” Porter v. Ins. Co., 207 N. C., 646 (647). On tbe entire record plaintiff knew or in tbe exercise of due care could have known tbe exact amount due on tbe indebtedness, and tendered same.

(3) Is tbe plaintiff entitled to require tbe holders of tbe note, secured by said deed of trust, to file their claim with tbe personal representative of tbe maker of said note and tbe grantors in said deed of trust and proceed in an effort to collect said indebtedness thereby before proceeding to foreclose tbe deed of trust on tbe land of which tbe plaintiff is tbe equitable owner? We think not.

J. R. Henderson died on 26 May, 1930. Tbe collector of tbe estate of J. R. Henderson, after tbe receipts and disbursements were accounted for, bad left on band $59.11. We do not think this material, as tbe owner of tbe note and deed of trust could resort for payment of tbe debt foreclosing under tbe power of sale contained in tbe deed of trust.

In Leak v. Armfield, 187 N. C., 625 (628), speaking to tbe subject, this Court said: “It nowhere appears in tbe record tbat Chase Boren consented to tbe procedure in which she was made a party or waived any right. This being so, from tbe facts found by tbe court below as a matter *787of law, we think that the restraining order ought not to have been granted. If subsequent judgment creditors or litigants over the equity of redemption could Tie up’ a first mortgage and effect its terms, it would seriously impair a legal contract. It may be hard measure’ to sell, but this is universally so. 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 of 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, when 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.”

The case of Moseley v. Moseley, 192 N. C., 243, cited by plaintiff, is in no sense applicable. That ease construed N. C. Code, 1935 (Michie), sec. 74. No mortgagee or trustee was endeavoring to foreclose, nor were they made parties to the proceeding. In the present case the power of sale was being carried out under the terms of the instrument. The Moseley case, supra, is so different from the present case that “He that runs may read.” Bank v. Purvis, 201 N. C., 753; Teeter v. Teeter, 205 N. C., 438; Henny Co. v. Hotel Co., 206 N. C., 591; Miller v. Shore, 206 N. C., 732.

It is held in this jurisdiction, and the weight of authority by text writers and decisions all over the nation are to the effect that it was not necessary for the mortgagee to file his claim for allowance with the personal representative of the deceased mortgagor before proceeding to foreclose on the mortgaged property, and that the failure to file the claim for payment out of the general funds of the estate did not affect the right of the mortgagee to foreclose under power of sale in the mortgage. Miller v. Shore, supra.

We have examined the record and the elaborate and carefully prepared briefs of the litigants with care. The brief of the defendants filed in the cause by Thomas H. Leath and his associates was most helpful in writing this opinion. The brief was not only persuasive, but convincing.

For the reasons given, the judgment of the court below is

Affirmed.