Broadhurst v. Brooks

• Decision Date: 27 September 1922
• Docket Number: 103.
• Citation: 113 S.E. 576,184 N.C. 123
• Parties: BROADHURST v. BROOKS ET AL.
• Court: North Carolina Supreme Court

113 S.E. 576

184 N.C. 123

BROADHURST v. BROOKS ET AL.

No. 103.

Supreme Court of North Carolina

September 27, 1922

Appeal from Superior Court, Johnston County; Allen, Judge.

Action by J. K. Broadhurst against F. H. Brooks, trustee, and another, to restrain the sale of property under a deed of trust. From an order overruling a demurrer to the complaint and continuing a restraining order to the final hearing defendants appeal. Affirmed.

This was a restraining order in behalf of plaintiff, a junior mortgageee of J. C. Stancill, forbidding the defendants to sell under a senior deed of trust executed by J. C. Stancill and wife to secure an indebtedness to the defendant Parrish. The defendants demurred to the complaint, and upon hearing the court overruled the demurrer and continued the restraining order theretofore granted to the final hearing. The defendants appealed.

Clifford & Townsend, of Dunn, for appellants.

Ed. S Abell, of Smithfield, for appellee.

CLARK C.J.

Stancill and wife in 1915 executed their several promissory notes to Alonzo Parrish, aggregating $20,000, the last of which fell due January 1, 1921, and executed to F. H. Brooks, trustee, a deed of trust conveying certain lands as security therefor. The defendant Brooks, trustee, advertised said lands for sale under the deed of trust on December 20, 1921. Stancill and wife thereupon instituted suit to restrain said sale alleging that the defendant Parrish was guilty of usury, and had retained $2,000 of the principal, and that Stancill actually received only $18,000. On the hearing of the Stancill suit, Calvert, J., continued the restraining order upon condition that Stancill and wife should pay on or before April 4, 1922, $11,462.98, with the provision that if that sum was not paid by said date the restraining order would be dissolved and the trustee should be at liberty to readvertise and sell the land. The sum thus prescribed was the principal with legal interest. This action is by the second mortgagee who contends that the sale should not take place, if Stancill should fail to make such payment until the plaintiff is afforded full opportunity to pay the principal only without interest.

The plaintiff alleges that he will be forced to purchase the mortgaged land in order to protect his rights as a junior mortgagee, and contends that this injunction should be continued to the hearing unless the sum due on the first mortgage, deducting...