Brown Et Ux v. Polk
| Decision Date | 01 October 1931 |
| Docket Number | No. 121.,121. |
| Citation | 160 S.E. 357 |
| Court | North Carolina Supreme Court |
| Parties | BROWN et ux. v. POLK et al. |
The C. Company brought an action to recover on a note executed by one B., and procured commencement of foreclosure proceeding under a power of sale contained in a trust deed securing three other notes which had been pledged as collateral security to the note sued on. B., however, brought an action to enjoin the foreclosure of the deed of trust, alleging that the notes secured had been paid, and in such suit demanded that the deed of trust be surrendered up and canceled of record. The C. Company, named defendant in the second suit, filed a plea in abatement on the ground that the same subject-matter was involved in its action previously instituted.
Appeal from Superior Court, Warren County; Cranmer, Judge.
Action by J. F. Brown and wife against W. T. Polk and others. From an order overruling its plea in abatement, the defendant the Cooper Company appeals.
Order affirmed.
Civil action to restrain the foreclosure of deed of trust and to have the same canceled of record.
On February 26, 1930, the Cooper Company, Inc., instituted an action in Vance county against J. F. Brown to recover on a promissory note of $2,295.87, subject to a credit payment of $427.21. The plaintiff asked for judgment on the note, and no more.
It seems that the Cooper Company holds, as collateral security to its note, three notes of $551.17 each, given by J. F. Brown to M. P. Burwell, R. B. Boyd, and W. B. Boyd for the purchase price of land situate in Warren county and secured by deed of trust thereon. No mention is made of this collateral in the suit instituted in Vance county. But, at the same time of the institution of its suit in Vance county, the Cooper Company caused the administrators of the deceased trustee to advertise under the power of sale in order to realize on its collateral as aforesaid.
Plaintiffs bring this action in Warren county, the county of their residence, to enjoin the foreclosure of said deed of trust, alleging payment of the notes, and demanding that the deed of trust be surrendered up and canceled of record. Summons was issued herein March 10, 1930.
Plea in abatement is filed by the Cooper Company on the ground that the same subject-matter is involved in its action instituted in Vance county February 26, 1930.
From the overruling of its plea in abatement, the Cooper Company appeals, assigning errors.
T. P. Gholson and A. W. Gholson, Jr., both of...
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