Gammon v. Johnson

• Decision Date: 27 February 1900
• Parties: GAMMON v. JOHNSON et al.
• Court: North Carolina Supreme Court

35 S.E. 185

126 N.C. 64

GAMMON

v.JOHNSON et al.

Supreme Court of North Carolina.

Feb. 27, 1900.

MORTGAGES — FORECLOSURE — JUDGMENT CREDITORS—INTERVENTION—INTERLOCUTORY JUDGMENT—APPEAL.

1. A judgment creditor of a mortgagor is a proper party in proceedings to foreclose the mortgage.

2. Since the matter of permitting intervention of a judgment creditor in mortgage foreclosure proceedings is largely within the court's discretion, a petition therefor need not be verified.

3. An order allowing a judgment creditor to be made a party to mortgage foreclosure proceedings being an interlocutory order, an appeal therefrom is premature.

Appeal from superior court, Edgecombe county; Bowman, Judge.

Suit by George R. Gammon against Jordan W. Johnson and wife, Indiana Johnson, and W. H. Johnson, for foreclosure of a mortgage, in which F. S. Royster, administrator d. b. n. of O. C. Farrar's estate, prayed to intervene as a judgment creditor. Judgment was rendered for plaintiff, and from an order granting the petition for intervention plaintiff appeals. Dismissed.

J. L. Bridgers and J. R. Gaskill, for appellant.

G. M. T. Fountain, for appellees.

CLARK, J. In general, all incumbrancers, whether prior or subsequent incumbrancers, as well as the mortgagor, should be parties to a proceeding for foreclosure; and judgment creditors as well as mortgagees. Hinson v. Adrian, 86 N. C. 61; Le Due v. Brandt, 110 N. C. 289, 14 S. E. 778. This is because the liens, by the sale, are transferred from the corpus to the fund into which it is converted, with their respective priorities preserved, and to be asserted in the decree for distribution. Cannon v. Parker, 81 N. C. 320. "In effect, the lien of a docketed judgment is in the nature of a statutory mortgage" (Manufacturing Co. v. Wilcox, 111 N. C. 42, 15 S. E. 885), though the judgment conveys no estate in the land (Baruch v. Long, 117 N. C. 509, 23 S. E 447). The lien of the judgment creditor being transferred to the proceeds of sale, subject only to the priority of the plaintiff's mortgage, the judgment creditor was a proper party, as against the defendant, to receive the amount due him out of the surplus after the payment of plaintiff; else, such surplus would go into the hands of the defendant, to the destruction of the lien of the judgment creditor, who was also a proper party, as against the plaintiff, that he might assert the credits which should be charged against the plaintiff by reason of timber cut on the land, since by so doing the surplus to be applied to the judgment, as the second lien, will be swollen. This is not bringing a new cause of action, but it is a necessary step in the just and proper distribution of the fund according to the priorities of the liens...