Kenney v. Balsam Hotel Co

• Decision Date: 10 June 1927
• Docket Number: (No. 583.)
• Citation: 138 S.E. 349
• Court: North Carolina Supreme Court
• Parties: KENNEY. v. BALSAM HOTEL CO.

138 S.E. 349

(194 N. C. 44)

KENNEY.

v.BALSAM HOTEL CO.

(No. 583.)

Supreme Court of North Carolina.

June 10, 1927.

ground for exception on appeal, unless the evidence is insufficient to support them or there is some other error of law.

Appeal from Superior Court, Jackson County; Stack, Judge.

Action by J. K. Kenney against the Balsam Hotel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Civil action for an accounting and to recover salary alleged to be due plaintiff by the defendant, a nonresident corporation, for services rendered as clerk in the defendant's hotel at Balsam, N. C. This action was instituted February 21, 1921, by attaching certain hotel furniture and thereafter obtaining service by publication. As the case involved a long accounting, it was referred under the statute. Exceptions were duly filed to the report of the referee, some of which were sustained, and, as thus modified, the report was adopted and approved by the judge of the superior court, and judgment entered in favor of plaintiff for the sum of $2,990.84, ' with interest. The property attached was ordered to be sold for the satisfaction of plaintiff's judgment. Defendant appeals, assigning errors.

H. G. Robertson, of Franklin, for appellant.

Hannah & Hannah and Alley & Alley, all of Waynesville, for appellee.

STACY, C. J. The defendant seeks to present the question as to whether the personal property, herein attached, is subject to the prior lien of a deed of trust executed by the defendant, April 3, 1909, to Mrs. W. H. Wiggs to secure an indebtedness of approximately $53,000.

Without deciding whether the defendant, on the present record, is in position to raise this question, we are satisfied from a careful examination of the evidence that the judgment is fully supported by the facts found, and it is clear that the furniture attached herein is not included in the deed of trust executed to Mrs. Wiggs in 1909.

The description of the property in the deed of trust is simply "all those certain tracts or parcels of land, situate, lying and being in Scott's Creek township in the county of Jackson, " with specific calls by metes and bounds, etc., and no enlargement of this description is to be found, either in the habendum or in the warranty clause, which would extend it to the personal property in question under the doctrine announced in Triplett v. Williams, 149 N. C. 394, 63 S. E. 79, 24 L. R. A. (N. S.) 514, wherein it was held that, unless otherwise controlled by...