Hutaff v. Adrian

• Decision Date: 21 March 1893
• Citation: 17 S.E. 78,112 N.C. 259
• Parties: HUTAFF v. ADRIAN et al.
• Court: North Carolina Supreme Court

17 S.E. 78

112 N.C. 259

HUTAFF v. ADRIAN et al.

Supreme Court of North Carolina

March 21, 1893

Appeal from superior court, New Hanover county; H. G. Connor, Judge.

Complaint by Henry Hutaff against Alrich Adrian and another to enjoin defendants from selling plaintiff's land, mortgaged to defendants. An injunction was awarded until the final hearing. From a judgment entered upon an order dissolving the injunction, plaintiff appeals. Affirmed.

The complaint is as follows: "The plaintiff complains and alleges (1) that on the 27th day of March, 1871, he executed to the defendants his promissory note, whereby he promised to pay them on the 1st day of April, 1872, the sum of nineteen hundred and ninety-five and 52-100 dollars; (2) that on the same day, for the purpose of securing the said promissory note, he executed to the said defendants a mortgage on a lot or parcel of land; *** (3) that the said mortgage was duly recorded; *** (4) that in the said mortgage there was a proviso contained, that if the said debt should be paid by the said 1st day of April, 1872, then the said mortgage was to be void, but, if default should be made in such payment that then the said mortgagees should be empowered to sell so much of the said mortgaged land and premises as should be necessary to satisfy the said debt, and costs and expenses allowed by law; (5) that no payment has ever been made on the said promissory note and mortgage, and on the 1st day of April, 1882, any action on either of them became barred by the statute of limitations, and has remained so ever since and no action has ever been brought thereon; (6) that the plaintiff has been in the actual occupation and possession of the said mortgaged land and premises ever since the execution of said mortgage, and is now in such possession; (7) that the defendants, by an advertisement inserted in the Wilmington Messenger, a daily newspaper published in the city of Wilmington aforesaid, on the 5th day of January, 1893, gave notice that on the 2d day of February, 1893, by virtue and in pursuance of the power of sale contained in the said mortgage, they would sell to the highest bidder at public auction, for cash, the lot of land and premises aforesaid described in said mortgage. Therefore, that plaintiff demands judgment (1) that the defendants, their agents and attorneys be perpetually enjoined from selling the said mortgaged land and premises; (2) for the delivering up the said promissory note and mortgage for cancellation; (3) for such other and further relief as the nature of the case may require, and to the court shall seem meet."

Where it appears from the allegations in a complaint to enjoin defendants from selling plaintiff's land, mortgaged to defendants, with a power of sale, that the power to sell is...