Bohannon v. Va. Trust Co

• Decision Date: 21 May 1930
• Docket Number: No. 531.,531.
• Citation: 153 S.E. 262
• Court: North Carolina Supreme Court
• Parties: BOHANNON. v. VIRGINIA TRUST CO.

(198 N.C. 701)

153 S.E. 262

BOHANNON.

v.VIRGINIA TRUST CO.

No. 531.

Supreme Court of North Carolina.

May 21, 1930.

Appeal from Superior Court, Catawba County; Stack, Judge.

Action by Mary W. Bohannon against the Virginia Trust Company. From an order transferring the cause to Buncombe county for trial, plaintiff appeals.

Affirmed.

See, also, 153 S. E. 263.

Plaintiff, resident and citizen of Catawba county, brings this action in the county of her residence against the Virginia Trust Company, a foreign corporation, for the purpose of restraining a sale of land situate in Buncombe county on which the defendant holds a deed of trust as surety for a loan, payment of which the plaintiff assumed when she purchased the land. The plaintiff and her predecessors having defaulted in the payment of said debt, the trustee advertised the property for sale under the power contained in the deed of trust, and the plaintiff in her complaint filed December 11, 1929, prays for a "restraining order * * * for an accounting * * * and for such other and further relief as may be just and proper."

A temporary restraining order was obtained by the plaintiff, returnable before Hon. A. M. Stack at the courthouse in Monroe, January 2, 1930, requiring the defendant to appear and show cause, if any it had, why the same should not be made permanent.

After due notice to the plaintiff, and before time for answering had expired, the defendant, on January 16, 1930, and before a hearing on the temporary restraining order had been held, duly entered a motion to have the cause transferred to Buncombe county for trial as the proper venue for said action.

This motion was allowed, and from the order transferring the cause to Buncombe county for trial, the plaintiff appeals, assigning errors.

A. A. Whitener and Louis A. Whitener, both of Hickory, for appellant.

Bourne, Parker & Jones, of Asheville, for respondent.

STACY, C. J. (after stating the case).

This action is, in effect, one to redeem land from a mortgage or deed of trust, and neces-sadly calls for the determination, in some form, of the rights or interests of the parties therein. The proper venue therefore is Buncombe county where the land is situated. C S. § 463. The order of removal was correctly entered. Vaughan v. Fallin, 183 N. C. 318, 111 S. E. 513; Councill v. Bailey, 154 N. C. 54, 69 S. E. 760.

Causey v. Morris, 195 N. C. 532, 142 S. E. 783, strongly relied upon by the defendant, is not at variance with, but in support of, this...