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MENZEL v. HINTON.

practically the entire opinion. It is no dictum but a clear and explicit enunciation of the essential principle underlying the case. It was delivered ten years ago by a unanimous court, and has since remained without question an established rule of property. It was cited with approval at the last term of this court in Smith v. Parker, 131 N. C., 470.

It is suggested that while the decision in Hutaff's case was right, the reasons given therefor were wrong. This may apply to the rulings of the Superior Court, but not to the opinions of this court, which not only become the settled. law of the case, but are published for the guidance of the profession and the people in all future cases of a similar character. If this were not so it would be better that opinions were never written certainly that they were never published. Mere per curiam orders of affirmance would be equally efficient with less danger of harm. I cannot bring myself to say that the learned court that delivered the opinion in Hutaff's case, while expressly basing their decision upon principles essentially erroneous, stumbled blindly upon the right. Not only has that decision since remained unquestioned, but as far as I am informed it is not in conflict with any preceding decision. During the ten years that have elapsed since its rendition the personnel of this court has repeatedly changed, but the unchanging principle has remained with at least the silent acquiescence of five different legislatures. As it has become a settled rule of property, not in violation of any constitutional or natural right, I think it should remain unchanged. It is said that this court has held that the debt may be barred and the mortgage remain valid. Such a decision in no way conflicts with Hutaff's case, nor has it any application to that at bar. If the note is not under seal, it may be barred in three years, and yet the mortgage securing it might not be barred in less than ten years. Regarding the security as merely incidental to the debt, I

MENZEL v. HINTON.

have doubted the correctness of this doctrine, but nevertheless it is in accordance with our decisions, and would apply to an action for foreclosure as well as a power of sale. Those decisions are to the effect that the mortgage, if itself not barred, may be foreclosed by action or sale after the debt is barred, but they do not go to the extent of holding that the power of sale exists forever. This is clearly the effect of the decision in Hedrick v. Byerly, 119 N. C., 420, which is cited by the court.

But if this were an open question why should we decide otherwise. While statutes of limitation were formerly looked upon with some disfavor, they are now regarded within proper limits as necessary for the security of property and peace of society.

Our present statutes of limitation take the place of our old statutes of presumption, and are in legal effect irrebutable presumptions, especially when relating to land. They were intended to strengthen and not to limit the old statutes. Therefore it may be well to see what was the force and effect of the preceding statute of presumptions. In Powell v. Brinkley, 44 N. C., 154, it was held that (quoting the syllabus) "The statute presumption of payment on mortgages, from the lapse of time, is payment at the day the debt fell due, and the legal estate revests in the mortgagor without a reconveyance." The court by Pearson, J., says in the opinion: "There was a presumption of payment at the day when the debt fell due. The condition of the deed was performed, and consequently there was no necessity for a reconveyance. The title revested by force of the condition. It is familiar learning that if the debt secured is paid on the day of forfeiture, the estate is revested without a conveyance. If a forfeiture takes place at law, the estate becomes absolute, and then a reconveyance is necessary, as it has become an equitable as distinguished from a legal right to redeem and

MENZEL v. HINTON.

have back the estate; as in the case when part payment after the day of forfeiture has been made-for the presumption refers to the day of the last payment. But even in such case, it seems clear that the same grounds, which raise a presumption of the payment of the mortgage debt and consequently of the satisfaction of the mortgage, must necessarily raise a presumption of the reconveyance of the estate created to secure the debt-which has been satisfied. This doctrine has been fully and ably discussed by the late Chief Justice Ruffin-Roberts v. Welch, 43 N. C., 287." The court evidently followed this line of thought in Hutaff v. Adrian.

It is true, sub-section 3 of Section 152 of The Code in terms applies only to an action for the foreclosure of a mortgage, but the same rule would apply by analogy with greater force to powers of sale, which, to use the words of Judge Pearson "are looked upon by the courts with extreme jealousy because the mortgagor is thereby put entirely in the power of the mortgagee." Mosby v. Hodge, 76 N. C., 387.

In Kornegay v. Spicer, 76 N. C., 95, the court speaking through the same great jurist says: "A mortgagee with a power of sale is a trustee, in the first place to secure the payment of the debt secured by the mortgage, and in the second place for the mortgagor, as to the excess. The idea of allowing the mortgagee to foreclose the equity of redemption by a sale made by himself, instead of a decree for foreclosure and a sale made under the order of the court, was yielded to, after great hesitation, on the ground that in a plain case, when the mortgage debt was agreed on and nothing was to be done. except sell the land, it would be a useless expense to force the parties to come into equity when there were no equities to be adjusted, and the mortgagor might be reasonably assumed to have agreed to let a sale be made after he should be in default. But this power of sale has always been watched with great jealousy." The opinions of Judge Pear

Vol. 132-43

MENZEL v. HINTON.

son are neither misty nor evasive, and the clear meaning of the above quotation is to the effect that a court of equity will not permit the execution of a power of sale when the court would not or could not sell in an action for foreclosure. In other words, a sale by the mortgagee was permitted only to save the expense of an action and “in a plain case when the mortgage debt was agreed on and nothing was to be done except sell the land." But we are told that this construction "would be to write into it (the statute) language which we do not find there." I do not see it in that light. The statute does not say that a power of sale may be executed by the mortgagee a hundred or a thousand years after the debt is due, as will be the effect of the opinion of the court. To sustain Hutaff's case we are required neither to write anything into the statute nor to write anything out of it. It is in thorough accord with the general policy of our laws, and is not forbidden by law. Section 3867 of The Code repeals only public and general statutes, and does not profess to interfere with the great principles of legal or equitable jurisprudence. We are constantly recognizing and enforcing pleas in bar not alluded to in The Code-such for instance as "contributory negligence" and "fellow servant."

But if it were ever necessary to write it into the statute, we are not called on to do it. It has been done for us, and in the ten years that have since elapsed, it has by the uniform. decisions of this court and the continued acquiescence of the legislature, become a settled rule of property under which in all probability lands have been bought, titles have been acquired and homes established that may be swept away by this decision. And for what purpose? Perhaps to follow more closely some ideal rule of logic or to conform to the decisions of some other State? I see no sufficient reason to depart from the time honored maxim of stare decisis.

CAUDLE v. LONG.

CAUDLE v. LONG.

(Filed May 19, 1903).

1. EVIDENCE-Sufficiency-Non-Suit-Ejectment.

In an ejectment suit where the plaintiff offers no evidence except a deed and possession thereunder for two years, a judgment of non-suit should be granted.

2. EJECTMENT-Deeds-Estoppel-Burden of Proof.

The defendant in ejectment is not estopped to dispute the title of the plaintiff by having accepted a deed from mother of plaintiff after the death of plaintiff's father, it not appearing that her dower had been assigned and the burden of showing this being on plaintiff.

ACTION by Serena M. Caudle and H. A. Mullis against John S. Long, heard by Judge W. S. O'B. Robinson at August Term, 1902, of the Superior Court of UNION County. From a judgment of non-suit the plaintiff appealed.

Adams & Jerome, for the plaintiffs.

Redwine & Stack and Armfield & Williams, for the defendant.

DOUGLAS, J. This is an action in the nature of ejectment in which the plaintiffs seek to recover lands admittedly in the possession of the defendant. The plaintiffs introduced in evidence a deed from Thomas B. Little to Solomon H. Mullis, dated Sept. 21, 1860, and registered October 12, 1901. Plaintiffs then introduced Mrs. R. E. Phifer, who testified that Solomon H. Mullis "was my first husband and we were married about 46 years ago. We moved to the land in 1860 or 1861, about the time my husband bought it. We made one or two crops; it was war times and my husband .went to the war and I moved with our two children to my father's. My husband came from the war very sick and died in my father's house during the war. We had two children

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