Beeson Hardware Co. v. Carolina Mortgage Co.

Supreme Court of North Carolina

Beeson Hardware Co. v. Carolina Mortgage Co.

3 S.E.2d 22, 215 N.C. 794, 1939 N.C. LEXIS 378

DecidedMay 24, 1939

StatusPublished

This text of 3 S.E.2d 22 (Beeson Hardware Co. v. Carolina Mortgage Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beeson Hardware Co. v. Carolina Mortgage Co., 3 S.E.2d 22, 215 N.C. 794, 1939 N.C. LEXIS 378 (N.C. 1939).

Pincite

Opinion

*795 Peb Cubiam.

The plaintiff, a second mortgagee, brought this action in High Point municipal court against the holders of the first mortgage to restrain its foreclosure and ascertain the amount of indebtedness secured by it, securing a restraining order as ancillary relief. Upon the hearing in the municipal court, the injunction was continued to the hearing. Upon appeal of the defendants to the Superior Court of Guilford County, the restraining order was dissolved, the judgment of the court below reversed, and the action dismissed.

While the principal controversy was over the application of the statute of limitations — C. S., 442, subsec. 2 — defendants’ brief may be considered in effect a demurrer ore tenus to plaintiff’s cause of action. As to this, while the plaintiff seeks to have the amount of the debt secured by the senior mortgage ascertained, it makes no challenge as to such amount except because of the inclusion therein of alleged usury. The case is controlled by Pinnix v. Casualty Co., 214 N. C., 760. Upon this authority, the judgment is

Affirmed.

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*795 Peb Cubiam.

The plaintiff, a second mortgagee, brought this action in High Point municipal court against the holders of the first mortgage to restrain its foreclosure and ascertain the amount of indebtedness secured by it, securing a restraining order as ancillary relief. Upon the hearing in the municipal court, the injunction was continued to the hearing. Upon appeal of the defendants to the Superior Court of Guilford County, the restraining order was dissolved, the judgment of the court below reversed, and the action dismissed.

While the principal controversy was over the application of the statute of limitations — C. S., 442, subsec. 2 — defendants’ brief may be considered in effect a demurrer ore tenus to plaintiff’s cause of action. As to this, while the plaintiff seeks to have the amount of the debt secured by the senior mortgage ascertained, it makes no challenge as to such amount except because of the inclusion therein of alleged usury. The case is controlled by Pinnix v. Casualty Co., 214 N. C., 760. Upon this authority, the judgment is

Affirmed.

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Bluebook (online)

3 S.E.2d 22, 215 N.C. 794, 1939 N.C. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beeson-hardware-co-v-carolina-mortgage-co-nc-1939.