Connor v. Dillard.

39 S.E. 641, 129 N.C. 50, 1901 N.C. LEXIS 16

• Court: Supreme Court of North Carolina
• Decided: September 24, 1901
• Status: Published

Opinion

ClaeK, J.

This is an action brought in Wilson County to enforce payment of a bond given for part purchase-money of the Floyd tract of land, lying in Nash County, with an allegation in the complaint and an agreement of record in this action, that it ivas stipulated in the contract of sale that payment should not be coerced out of any other property of the defendant, and the complaint asks only that judgment be “enforced by execution against said Floyd tract.” The bond is one of a series secured by mortgage, though thé complaint is not in form for the foreclosure thereof.

The defendant moved to remove to Nash County, under section 190 (3) of The Code. The motion should have been ’granted, because tbe action is “substantially for tbe foreclosure of a mortgage” (Fraley v. March, 68 N. C., 160), and tbe judgment could be enforced only by subjecting a particular tract of real estate in another county. Tbe enforcement of tbe judgment against that land is tbe sole object of tbe action. Manufacturing Co. v. Brower, 105 N. C., 440. If the action bad been for a mere personal judgment, though on a mortgage note, it could have been brought where plaintiff resides, and docketing the judgment would not convey to plaintiff any estate in debtor’s land. Gammon v. Johnson, 126 N. C., 64; McLean v. Shaw, 125 N. C., 491.

In Baruch v. Long, 117 N. C., 509, tbe motion to remove was made under subsection 1 of this section 190, and it was held that the lien of a docketed judgment was not such “estate or interest” in realty as entitled tbe defendant to remove the action to tbe county where such judgment was docketed. That action was a creditor’s bill to set aside as fraudulent certain judgments suffered by defendant and certain transfers of property by him. Tbe proceeding was not, as here, to enforce collection under tbe judgment lien (which is in the nature of a statutory mortgage, Gambrill Mfg. Co. v. Wilcox, 111 N C., 42), but was calling in question the bona fides of tbe judgments and transfers. This in nowise affected tbe enforcement of .the lien, nor required tbe examination of title to realty, but was a personal action against tbe defendant, calling only for tbe investigation of his conduct in suffering such judgment — not its lien and effect, if valid. This appeal was not premature. Roberts v. Connor, 125 N. C., 45. In refusing to remove there was

Error.