Connor v. Dillard
| Decision Date | 24 September 1901 |
| Court | North Carolina Supreme Court |
| Parties | CONNOR . v. DILLARD. |
PURCHASE-MONEY BOND—ACTION TO FORECLOSE—JURISDICTION—CHANGE OF VENUE.
1. Under Code, § 190(3), providing that application for the sale of real estate on foreclosure may be made in the superior court of the county where such real estate, or some part thereof, lies, it was error to refuse to remove to the county where the land was situated an action brought in the county of the defendant's residence, to enforce payment of a bond given for part purchase money of land; the parties having agreed to enforce the payment only out of this particular land.
2. An appeal from an order refusing to remove a cause to another county for trial, taken at the time of the entry of the order, is not premature.
Appeal from superior court, Wilson county; Coble, Judge.
Action by H. G. Connor, executor, against Ed. Dillard. Prom a judgment in favor of plaintiff, defendant appeals. Reversed.
Jacob Battle and B. H. Bunn, for appellant.
H. G. Connor & Son, for appellee.
This is an action brought in Wilson county to enforce payment of a bond given for part purchase money of the Floyd tract of land, lying in Nash county, with an allegation in the complaint and an agreement of record in this action that it was stipulated in the contract of sale that payment should not be coerced out of any other property of the defendant, and the complaint asks only that judgment be "enforced by execution against said Floyd tract." The bond is one of a series secured by mortgage, though the complaint is not in form for the foreclosure thereof. The defendant moved to remove to Nash county, under section 190(3) of the Code. The motion should have been granted, because the action is "substantially for the foreclosure of a mortgage" (Fraley v. March, 68 N. C. 160), and the judgment could be enforced only by subjecting a particular tract of real estate in another county. The enforcement of the judgment against that land is the sole object of the action.
Manufacturing Co. v. Brower, 105 N. C. 440, 11 S. E. 313. If the action had been for a mere personal judgment, though on a mortgage note, it could have been brought where plaintiff resides, and docketing the judgment would not convey to plaintiff any estate in debtor's land. Gammon v. Johnson, 126 N. C. 64, 35 S. E. 185; McLean v. Shaw, 125 N. C. 491, 34 S. E. 634. In Baruch v. Long, 117 N. C. 509, 23 S. E. 447, the motion to remove was made under ...
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Works v. J. L. Roper Lumber Co
...has been thoroughly settled by repeated decisions of this court Manufacturing Co. v. Brower, 105 N. C. 440, 11 S. E. 313; Connor v. Dil-lard, 129 N. C. 50, 39 S. E. 641; Brown v. Cogdell, 136 N. C. 32, 48 S. E. 515; Perry v. Railroad, 153 N. C. 117, 68 S. E. 1060. It is provided by Revisal,......
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Brown v. Cogdell
...situated. The appeal from the refusal of the defendant's motion to remove the cause to Beaufort county was not premature. Connor v. Dillard, 129 N. C. 50, 39 S. E. 641; Roberts v. Connor, 125 N. C. 45, 34 S. E. 107; Alliance v. Murrell, 119 N. C. 124, 25 S. E. 785. Actions for the recovery ......
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Carolina Mortgage Co v. Long
...of a mortgage on land in Forsyth county. In that case, the proper venue for its trial is Forsyth county (C. S. § 463(3), Connor v. Dillard, 129 N. C. 50, 39 S. E. 641), and there was error in the denial of defendants' motion for its removal, as a matter of right, to said county, for trial. ......