The writing set out in the record seems to us to be an acknowledgment that the relation of mortgagor and mortgagee existed between the parties who signed it — that F. M. Farrell was, at its date, the mortgagor of Ellington, Royster Co. The admission of the fact that that relation existed was, of course, an acknowledgment on Farrell's part that the debt secured by the mortgage had not been paid. It is also, it seems to us, a promise to pay the mortgage debt. At the time this writing was signed the mortgagor gave to the mortgagee an acceptance for $350 (a sum that exceeded the mortgage debt), payable on a date fixed before the date to which the sale under the mortgage was postponed under the agreement, and it was therein stipulated that "upon payment of said acceptance" the mortgage should be cancelled. We think this writing, especially if considered in connection with the acceptance spoken of, constituted an express and unconditional promise to pay the mortgage debt and an explicit acknowledgment of the mortgage, and that there was error in the charge excepted to.
It was argued before us that while a written acknowledgment of the debt would take it out of the operation of the statute of limitations, only a payment could have that effect on the right to foreclose a mortgage. A written acknowledgment is as effective in the one case as in the (310) other. The Code has not altered at all the effect of a new promise or acknowledgment. Sec. 172 (Lord Tenderden's Act) is merely a rule of evidence enacted to prevent fraud and perjury. The original statute of limitations (21 James I., ch. 16) had no provision as to new promises and acknowledgments. The courts made the law on *Page 215 this subject, and made it apply to all causes of action that rested on a promise. Before the adoption of The Code, proof of a promise or acknowledgment would rebut the presumption of the satisfaction of a mortgage, as is shown by numerous decisions. Brown v. Becknall, 58 N.C. 423;Ray v. Pearce, 84 N.C. 485; Hughes v. Edwards, 8 Wheat., 489;Simmons v. Ballard, 102 N.C. 105. And now the bar of our present statute of limitations may be overcome by proof of a promise or acknowledgment, but the proof must be in writing, unless the new promise be one that the law implies from a part payment. Hill v. Hilliard, 103 N.C. 34.
New trial.
Cited: Wells v. Hill, 118 N.C. 904; Phillips v. Giles, 175 N.C. 412.