Carolina Cooling & Heating, Inc. v. Blackburn, 446

• Decision Date: 04 May 1966
• Docket Number: No. 446,446
• Citation: 267 N.C. 155,148 S.E.2d 18
• Court: North Carolina Supreme Court
• Parties: CAROLINA COOLING & HEATING, INC., Plaintiff, and State of North Carolina ex rel. I. L. Clayton, Commissioner of Revenue, Intervening Plaintiff, v. Charles F. BLACKBURN, Trustee, Citizens Bank & Trust Company, Noteholder, Theodore A. Granger, Trustee for Asco-Associated Companies, Theodore A.Granger, t/a Asco-Associated Companies, and Elizabeth T. Granger, Defendants.

Page 18

148 S.E.2d 18

267 N.C. 155

CAROLINA COOLING & HEATING, INC., Plaintiff and State of North Carolina ex rel. I. L. Clayton, Commissioner of Revenue, Intervening Plaintiff, v. Charles F. BLACKBURN, Trustee, Citizens Bank & Trust Company, Noteholder, Theodore A. Granger, Trustee for Asco-Associated Companies, Theodore A.Granger, t/a Asco-Associated Companies, and Elizabeth T. Granger, Defendants.

No. 446.

Supreme Court of North Carolina.

May 4, 1966.

Zollicoffer, & Zollicoffer, Henderson, for Carolina Cooling & Heating, Inc., plaintiff appellant.

Perry, Kittrell, Blackburn & Blackburn, by Robert G. Kittrell, Jr., Bennett H. Perry, Jr., Henderson, for defendant Citizens Bank & Trust Co. and Charles F. Blackburn, Trustee, appellees.

HIGGINS, Justice.

The plaintiffs' allegations by verified complaints are not denied by answer. The challenge is by motion to dissove the restraining order. The procedure on the part of the defendants is equivalent to a demurrer based on the legal grounds stated in the motion, supplemented by the affidavits. In substance the allegations in the complaints are that the note for $50,000.00 secured by the deed of trust has been paid in full. Consequently, the payment of this note extinguishes the power of the trustee to sell the land, and entitles the mortgagor to cancellation. The payment of the note in full divests the trustee of all authority to foreclose. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; Barbee v. Edwards, 238 N.C. 215, 77 S.E.2d 646; Fleming v. North Carolina Joint Stock Land Bank, 215 N.C. 414, 2 S.E.2d 3; Crook v. Warren, 212 N.C. 93, 192 S.E. 684.

In Pinnix v. Maryland Casualty Company, 214 N.C. 760, 200 S.E. 874, 121 A.L.R. 871, this Court said: 'The right of a junior mortgagee to resort to injunction to stay a foreclosure proceeding under a senior mortgage having a lien upon the same land, until a Bona fide controversy as to the amount due on the senior mortgage has been ascertained, is not questioned.' Whether the junior lien is by another mortgage, deed of trust, or by docketed judgment, would appear to be without significance.

The plaintiffs' complaints allege sufficient facts to entitle them to restrain the proposed sale and give them the opportunity to establish their allegations that the $50,000.00 note has been paid. The allegations furnish solid foundation upon which to base an order continuing the restraint until the defendants at least place them at issue by answer. 'It is generally...