Grantham v. Nunn
| Decision Date | 24 September 1924 |
| Docket Number | 158. |
| Citation | 124 S.E. 309,188 N.C. 239 |
| Parties | GRANTHAM v. NUNN ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; Daniels, Judge.
Action by Z. Z. Grantham against R. A. Nunn, trustee, and others. Judgment for plaintiff continuing restraining order, and defendant T. W. Holton appeals. Affirmed.
In action to redeem mortgaged property and cancel deed of trust heard on order to show cause why deed should not be canceled order denying application on ground that one defendant had a lien preventing cancellation did not preclude injunction against sale of the property until final hearing on the merits.
See also, 121 S.E. 662.
On the hearing it was made to appear that, on April 8, 1918, Judge Henry R. Bryan, now deceased, and his wife, Mary N. Bryan sold and conveyed to L. T. Grantham a tract of land in said county for $5,900, evidenced by 11 serial notes for $500 each, due on March 1st in successive years from 1919 to 1929 inclusive, and a $400 note, due March 1, 1930; the interest payable annually on March 1st, and secured by deed of trust to secure said notes to defendant R. A. Nunn, with power of sale by him in case of default in paying the taxes and the respective amounts and interest as they became due, etc.; that, on December 4, 1918, said L. T. Grantham sold and conveyed the land, subject to said deed of trust, to defendant C. K. Taylor, and, as part of the purchase money, the latter assumed the payment of the Bryan notes, and, in addition, promised to pay to L. T. Grantham, $6,545.50, which last sum was secured by a second mortgage on the property; that default having been made on this second mortgage, the trustee therein foreclosed by sale, when Z. Z. Grantham became the purchaser and took a deed for said property subject to the first mortgage; that, in December, 1923, said purchaser, Z. Z. Grantham, instituted the present action seeking to redeem the property, and alleged among other things that he had satisfactorily arranged with the beneficiaries of the first mortgage, Mrs. Bryan et al., for the payment of all the notes now outstanding and unpaid, and demanded of the trustee that he cancel of record the first deed of trust, which said proper and reasonable request was declined by the trustee on the alleged ground that two of the $500 notes now past due were held by defendant T. W. Holton, who claimed that he had advanced the money to pay the same under an agreement with defendant Taylor that the same should continue to be a lien on the land through the original purchase-money mortgage. Said T. W. Holton was made a party defendant by reason of said claim, and plaintiff in his verified complaint averred that said claim was entirely invalid as said notes had been paid outright by C. K. Taylor, and defendant Holton had no interest or claim on the property, etc.
As ancillary to the principal suit, plaintiff applied for and obtained an order to show cause in the form of a mandatory injunction requiring defendant to appear and show cause why said deed of trust should not be canceled of record on payment of the amount actually due as claimed and alleged by plaintiff.
Defendant appeared and filed his affidavits in response, making averment of his having lent the money to C. K. Taylor with which to pay said notes, and under an agreement that same should continue to be secured by the original purchase-money mortgage.
On the hearing before Judge Frank A. Daniels at January term, 1924 his honor finds the facts to be as alleged by defendant Holton, and denied plaintiff's application for an order directing present cancellation of the deed of trust. From this order, plaintiff appealed, and the judgment of his honor was affirmed; the court holding that, on the facts as stated by defendant Holton, and sustained in the findings of the lower court, a right of subrogation would arise to said defendant. This opinion having been certified down, the trustee, Nunn, advertised the land for sale under the purchase-money mortgage or deed of trust for default in paying interest, taxes, and the unpaid purchase money. Thereupon plaintiff applied for and obtained from Judge Daniels a preliminary injunction with an order to show cause why same should not be continued to the final hearing. At such hearing defendants appeared and claimed that the former order made by Judge Daniels and affirmed by the Supreme Court was a final determination of the matters in dispute in defendant Holton's favor. The court, being...
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Dennis v. Redmond
... ... a jury to determine ... Hoke, ... Chief Justice, in Grantham v. Nunn, 188 N.C. 239, ... 242, 124 S.E. 309, 310, speaking to the subject, says: ... "In Sutton v. Sutton, supra [183 N.C. 128, 110 S.E ... ...
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Pruitt v. Williams
...the action. Telephone Co. v. Plastics, Inc., 287 N.C. 232, 214 S.E.2d 49 (1975); In re Assignment of Albright, supra; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309 (1924). On an appeal from an order of a superior court judge granting or refusing a preliminary injunction, the Supreme Court is......
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Groves v. McDonald
... ... order, however, goes farther and dismisses the action. In ... this, there was error. Cox v. Kinston, 217 N.C. 391, ... 8 S.E.2d 252; Grantham v. Nunn, 188 N.C. 239, 124 ... S.E. 309; Owen v. Board of ... [25 S.E.2d 388.] ... Education, 184 N.C. 267, 114 S.E. 390; Davenport v. Board ... ...
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Schloss v. Jamison, 249
...on the issues determinable at the final hearing. Branch v. Board of Education [230 N.C. 505, 53 S.E.2d 455], supra; Grantham v. Nunn, 188 N.C. 239, 124 S.E. 309; Hudnell v. East Carolina Lumber Co., 180 N.C. 48, 103 S.E. In Union Carbide Corp. v. Davis, supra, the fourth headnote in our rep......