Bullington v. Angel

• Decision Date: 17 September 1941
• Docket Number: 22.
• Citation: 16 S.E.2d 411,220 N.C. 18
• Parties: BULLINGTON v. ANGEL.
• Court: North Carolina Supreme Court

16 S.E.2d 411

220 N.C. 18

BULLINGTON v. ANGEL.

No. 22.

Supreme Court of North Carolina

September 17, 1941

Jones & Jones, of Franklin, and Jones, Ward & Jones, of Asheville, for appellant.

Morphew & Morphew, of Robbinsville, and R. Roy Rush, of Roanoke Va., for appellee.

SCHENCK Justice.

The plaintiff alleges in effect that he contracted in the State of Virginia with the defendant for the sale and purchase of a tract of land in Viriginia, that he executed a deed to the defendant for said land, and the defendant paid him a part of the purchase price and executed to trustees a deed of trust on said land to secure several notes representing the balance of the purchase price therefor; that there was a default in the payment of one of said notes when due, and plaintiff exercised the right given in said deed of trust to declare the remaining notes due, and called upon said trustees to sell the land to provide funds with which to pay the unpaid notes; that said trustees advertised and sold said land and applied the funds arising therefrom to the payment of said notes; that after such application of such funds there was a deficiency still due on said notes and this action is to recover such deficiency.

To the complaint the defendant filed a upon the ground that it failed to state facts sufficient to constitute a cause of action, for that it appears from the face thereof that the action is to recover a deficiency judgment on notes given for the purchase price of real estate.

The Court entered judgment overruling the demurrer to which the defendant preserved exception and appealed.

The question presented is: When it appears from the complaint that the notes and deed of trust upon which the action is predicated were executed subsequent to February 6, 1933, in Virginia, and relate to real estate in Virginia, do the provisions of the law of North Carolina, Chap. 36, Public Laws 1933 (N.C. Code of 1939 (Michie), § 2593(f), prevent the holder of the notes secured by such deed of trust from obtaining a deficiency judgment thereon in the courts of North Carolina? The answer is in the affirmative.

Section 1, Chap. 36, Public Laws 1933, which was 6 February, 1933, in part, reads: "In all sales of real property by mortgagees and/or trustees under powers of sale contained in any mortgage or deed of trust hereafter executed, or where judgment or decree is given for the foreclosure of any mortgage executed after the ratification of this act to secure payment of the balance of the purchase price of real property, the mortgagee or trustee or holder of the notes...