majority"> Walicee, J.,

after stating tbe case: There was no substantial irregularity in tbe proceedings. There may have been a slight technical deviation from the usual course in such cases, but in no respect were tbe plaintiffs prejudiced. We do not think tbe plaintiffs are entitled at this late day to reopen the account and introduce additional evidence as to tbe new credits they set up for waste and rents and profits. It was decided at tbe last term, in Williams v. McFadden, 145 N. C., 156, tbat, “in an action to enforce a vendor’s lien, where a definite indebtedness is declared and judgment there *217 for entered and foreclosure by sale decreed, such judgment is final between the parties as to the amount of the indebtedness so adjudicated; but as to all subsequent questions arising as incident to the sale, the occupation .and possession of the property by the parties, the collection and distribution of the proceeds, and the like, the decree is interlocutory.” That case was likened to an action by a mortgagee to foreclose a mortgage, and it is not distinguishable in principle from the'case at bar. Litigation could not well be ended under juny other rule. The plaintiffs, of course, are not estopped to recover from Roberts upon any liability accruing since the decree was made, nor as to any which is not conclusively settled by the same.

As to the question of jurisdiction to proceed in the cause and to make the decree of sale, we have no doubt that his ITonor, Judge Guión, is sustained in his ruling by the decisions of this Oourt. The consent decree merely declared the relations of the parties, converting the absolute estate conveyed by the deed into one upon condition subsequent, or a mortgage, and it surely was not the intent of the parties to deprive either of them of the benefits incident to the relation thus established. It was the intent and interest of the plaintiffs, on the contrary, to have this relation, with all its advantages, established and declared by the court, as they were handicapped in the prosecution of the suit by the fact that the deed, as it was written, conveyed an absolute or unconditional estate. Why should the plaintiffs be now permitted to take advantage of their own wrong? They negligently failed to have the condition, or 'the trust, as we may term it, expressed in the written instrument, and the court, with the consent of the parties and by its decree, has reformed the deed, so that they now stand in the same relation to each other as they would have stood in law and in equity if the original deed had been correctly drawn according to the true intent of the parties. The consent decree, therefore, virtually turns this action *218 into one to foreclose a mortgage. This brings ns to the consideration of the specific objection raised by the plaintiffs’ counsel. They insist, impliedly at least, upon a strict foreclosure of the mortgage, and that, if they do not redeem'within the time limited, then the title should pass to the mortgagee, who is the defendant, or that he should be compelled to hold the land until by the rents and profits received by him the debtfis paid — a living pledge (vidum vadium), resembling the estate^held by statute merchant or statute staple. 2 Blk., 157-160. But it is the object of the law to settle finally and fully the rights of the parties and to put an end to litigation. Besides, where a trust relation exists, such as we have in this case, the rights of the parties are determined upon equitable principles. It has therefore been held, at least in this State, that where the debt is not paid at the time fixed by the decree of the court it is not according to the course of the court to decree a strict foreclosure or to order that the plaintiff’s bill (now action) to redeem shall stand dismissed, but, in default of payment, to order a sale of the land conveyed by the mortgage and apply the proceeds to the payment of the encumbrance and the costs. The surplus, of course,’ goes to the mortgagor. Ingram v. Smith, 41 N. C., 97. It is said by Nash, O. J., in Averett v. Ward, 45 N. C., at page 195, that, “in a case of mortgage for the purpose of discharging the debt, the most convenient course for both parties is primarily to have the land itself sold, giving to the debtor any surplus that may remain, and this rule is acted on in this State,” citing Ingram v. Smith, supra. To the same effect is Green v. Crockett, 22 N. C., 390, a case very much in point, as it decides that it is not erroneous to order a sale when neither-party asks the court for one. But under our Code system it is not required that a party should be confined to the specific relief which he demands. Knight v. Houghtalling, 85 N. C., 17. In Vorhees v. Porter, 134 N. C., at page 595, this Court said: “We hear the case upon the facts alleged in the plead *219 ings, and. if the plaintiffs have set forth in their complaint such facts as entitle them to relief they will not be restricted to the relief demanded in their prayer for judgment, but may have any additional and different relief which is not inconsistent with the facts so alleged in their complaint, it being the pleadings and the facts proved which determine the measure of relief to be administered.” And at page 591 it is said: “AYe find it to be well settled by the decisions of this Court that, if the -plaintiff in his complaint states facts sufficient to entitle him to any relief, this Court will grant it, though there may be no formal prayer corresponding with the allegations, and even though relief of another kind may be demanded. Knight v. Houghtalling, supra; Gilliam v. Insurance Co., 121 N. C., 369. In the case last cited, Clark, J., for the Court, says: 'Under The Code, the demand for relief is immaterial, and the Court will give any judgment justified by the pleadings and proof,’ citing numerous cases. Clark’s Code (3d Ed.), p. 584, and notes to section 425.”

There was therefore no necessity for any “cross bill” or . specific prayer by either of the parties for relief by sale of the property. We apply the law to the facts as stated in the pleadings and established at the hearing, and award such relief as the parties may respectively be entitled to have in the premises, without regard to any special prayer.

The right of the defendant to have a sale of the land upon failure of the plaintiffs to pay the debt at the time fixed by the order was combated by Mr. Thomas in an able and learned argument before us, but we think the ancient rule has given way to the more enlightened modem practice of the courts, by which the rights of the parties are determined upon just and equitable principles and for the purpose of settling all matters in controversy. The sale of the land would seem to be beneficial to the plaintiffs if they were unable to pay the debt. We find no error in the rulings of the court.

No Error.

Citation profile

How this case has been treated — in progress