Bank of Statesville v. Graham
| Decision Date | 31 January 1880 |
| Citation | 82 N.C. 489 |
| Court | North Carolina Supreme Court |
| Parties | BANK OF STATESVILLE v. S. P. GRAHAM and others. |
OPINION TEXT STARTS HERE
MOTION to set aside return on execution, heard at August Special Term, 1879, of IREDELL Superior Court, before Gudger, J.
The bank of Statesville in the superior court of Iredell recovered judgment against the defendants, S. P. Graham, Milton Graham and H. P. Sharp, and sued out execution under which the sheriff sold for six hundred dollars, (a sum sufficient to pay the debt and costs) to the defendant Roxana Simonton, a tract of land belonging to one or both the defendants first named, and executed his deed to her therefor. The costs only were paid in money, and the residue of the price, under the direction of an attorney representing, as we understand the case, both the plaintiff and the purchaser, was settled by endorsing satisfaction on the execution and a receipt given to the sheriff for the amount. This adjustment was made by the attorney under the belief that the bank was amply solvent, and there would be a large surplus after its debts were paid, belonging to the said Roxana, of which this was a payment in advance.
On motion of the receiver (of plaintiff bank) and after hearing the evidence, the court ordered that the receipt on the execution be set aside and annulled, and the sheriff's deed cancelled and surrendered to the defendant, S. P. Graham. From this judgment all the defendants appeal.
Mr. J. M. Clement, for plaintiff .
Messrs. G. V. Strong and Mason & Devereux, for defendants .
SMITH, C. J., after stating the case.
There are several exceptions taken in the brief of the appellant's counsel which is affixed to, and sent up with, the transcript which cannot be considered in this court because they constitute no part of the case on appeal and do not appear from the record to have been taken on the trial. We are enforcing a rule of long standing and repeatedly announced, in refusing to allow exceptions in civil causes to be first taken in this court, unless for want of jurisdiction, or where upon the whole case the party is not entitled to relief. Ring v. King, 4 Dev. & Bat., 164; State v. Langford, Busb., 436; Meekins v. Tatem, 79 N. C., 546; Whissenhunt v. Jones, 80 N. C., 348, and other cases.
Let us then examine the case presented in the record: No objection is suggested or urged against the sale or the manner in which it was conducted, and it seems to have been in all respects regular and fair. The...
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Weir v. Weir, (No. 425.)
...be alleged and proved, with each case to be judged by its own facts. C. S. § 671 et seq.; Burton v. Spiers, 92 N. C. 503; Bank of Statesville v. Graham, 82 N. C. 489; Beckwith v. Mining Co., 87 N. C. 155; Black v. Justice, 86 N. C. 504; Crews v. Bank, 77 N. C. 110; Woodley v. Gilliam, 67 N.......
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Weir v. Weir
...be alleged and proved, with each case to be judged by its own facts. C. S. § 671 et seq.; Burton v. Spiers, 92 N.C. 503; Bank of Statesville v. Graham, 82 N.C. 489; Beckwith v. Mining Co., 87 N.C. 155; Black Justice, 86 N.C. 504; Crews v. Bank, 77 N.C. 110; Woodley v. Gilliam, 67 N.C. 237; ......
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McCanless v. Flinchum
...5 Jones, (N. C.) 76. In the absence of fraud, (and none is alleged against the plaintiff,) the sale will not be set aside. Bank v. Graham, 82 N.C. 489. A sale will be set aside for inadequate price, unless undue advantage or fraud is suggested, and this is a fact to be found. Beckwith v. Mi......
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Mccanless v. Flinchum
...5 Jones, (N. C.) 76. In the absence of fraud, (and none is alleged against the i)laintilf,) the sale will not be set aside. Bank v. Graham, 82 N. C. 489. A sale will not beset aside for inadequate price, unless undue advantage or fraud is suggested, and this is a fact to be found. Beokwith ......