Hairston v. Keswick Corp., 761.

• Decision Date: 04 January 1939
• Docket Number: No. 761.,761.
• Citation: 214 N.C. 678,200 S.E. 384
• Parties: HAIRSTON. v. KESWICK CORPORATION et al.
• Court: North Carolina Supreme Court

214 N.C. 678

200 S.E. 384

HAIRSTON.

v.KESWICK CORPORATION et al.

No. 761.

Supreme Court of North Carolina.

Jan. 4, 1939.

Appeal from Superior Court, Forsyth County; F. D. Phillips, Judge.

Action by W. P. Hairston against the Keswick Corporation and others, original parties defendant, and the Carolina Bond Corporation, additional party defendant, to restrain defendants from foreclosing a deed of trust. From an adverse order of the superior court affirming an adverse order of the county court continuing an injunction, the defendants appeal.

Reversed.

Plaintiff brought this action in the County Court of Forsyth County to restrain the defendants from foreclosing a deed of trust executed to secure an indebtedness of the plaintiff to the Carolina Mortgage Company until such time as the amount legally owed by the plaintiff could be ascertained.

The plaintiff complained that he had executed to the Carolina Mortgage Company mortgages securing loans aggregating about $11,000 in principal money, and that by retention of principal money, under guise of various fees, charges, and bonuses, grossly usurious interest charges were exacted from plaintiff, and that representatives of the mortgagees falsely represented to the plaintiff that he owed a balance of $6,450 on account of said loan; that plaintiff in order to save his properties from sacrifice procured a loan from the Building and Loan Association and paid to the Carolina Mortgage Company the sum of $5,500, and executed and delivered to it his promissory note for $950, secured by a deed of trust on real property in Winston-Salem, in full settlement of the amount demanded by the Mortgage Company. The plaintiff recites that he had no knowledge of the grossly usurious interest and charges that had been reserved by the Mortgage Company until the execution and delivery of the note; that an audit of the account involved in the loan disclosed that plaintiff owed the Mortgage Company only $5,787.52 at the time he paid the sum of $5,500 and, therefore, the plaintiff owed now only the sum of $287.50 instead of the $950 evidenced by the promissory note which he made and delivered to the defendants. Plaintiff further alleges that the defendants have threatened to foreclose the deed of trust securing the $950, including usury, with interest thereon at six per cent, and demands that defendants be restrained from such foreclosure.

Upon the hearing in the County Court, the injunction was continued to the hearing, and a complaint setting up substantially the cause of...