Hinson v. Adrian

• Decision Date: 28 February 1882
• Citation: 86 N.C. 61
• Court: North Carolina Supreme Court
• Parties: HINSON & CUMMING v. ADRIAN & VOLLERS.

86 N.C. 61

HINSON & CUMMING

v.ADRIAN & VOLLERS.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of ANSON Superior Court, before Graves J.

The plaintiffs, Hinson & Cumming, having recovered several judgments against the defendant, Knotts, have caused the same to be docketed in January, 1878, in the counties of Anson and Union. Their co-plaintiffs, Aaron & Rheinstein, having also recovered judgments, against the same debtor in the superior court of New Hanover in the same month, transmitted a transcript thereof to the same counties, and caused them to be docketed in Anson county, in February, 1878, and in Union county in April, 1880. They unite in the present action to enforce a foreclosure and sale of lands of the debtor, lying in both the counties last mentioned, which had been in 1876 conveyed by deed of mortgage to the defendants, Adrian & Vollers, to secure a large indebtedness then due them, reduced, as stated in their answer and computed to May 16, 1881, to the sum of two thousand seven hundred and forty-six dollars and fifty cents. They assent to the foreclosure and sale.

The defendant, Knotts, while in his answer he demands proof of some of the allegations of the complaint, and denies none in the form prescribed in the Code, not disavowing “any knowledge or information thereof sufficient to form a belief,” (§ 100) proceeds to state that after the execution of the mortgage and prior to the liens acquired by the docketed judgments, he made a second mortgage to R. T. Bennett and conveyed to him his equity of redemption in the same lands to secure a debt due to the said Bennett which is still unadjusted.

While upon a strict construction of the rules of pleading under the new system, the averments in the complaint may not be legally controverted, issues, not appearing in form in the record, were submitted to the jury and found in favor of the plaintiffs. Just before the trial was entered upon, the defendant, Knotts, filed an affidavit in which he recites a further indebtedness to other creditors, who also have docketed judgments and liens upon the debtor's equitable estate in the lands, and one of which, belonging to Wittkowski & Rintels for about five hundred dollars, has precedence of the plaintiff's liens. He asks that these creditors be made parties to the action as interested in the sale, and disposition of the fund. The application was denied, but in the rendition of judgment, after the verdict, for the sale of the lands, unless the debts were paid within a limited time, an account is directed to be taken of the several liens upon the lands, their amounts and priorities. From this judgment the defendant, Knotts, alone, appeals.

Mr. John D. Shaw, for plaintiffs .

Messrs. Burwell & Walker, contra .

SMITH, C. J., after stating the above.

...