S. B. Parker Co. v. Commercial Bank of High Point

• Decision Date: 29 March 1933
• Docket Number: 177.
• Citation: 168 S.E. 681,204 N.C. 432
• Parties: S. B. PARKER CO. (ROBERTS et al., Interveners v. COMMERCIAL BANK OF HIGH POINT et al.
• Court: North Carolina Supreme Court

168 S.E. 681

204 N.C. 432

S. B. PARKER CO. (ROBERTS et al., Interveners v. COMMERCIAL BANK OF HIGH POINT et al.

No. 177.

Supreme Court of North Carolina

March 29, 1933

Appeal from Superior Court, Craven County; Frizzelle, Judge.

Action by the S. B. Parker Company, and others as interveners against the Commercial Bank of High Point, N. C., and others. From an adverse order, defendant the Union Mortgage & Investment Company appeals.

Reversed.

Where receiver appointed in foreclosure took possession of property and collected income, under court order, such income should be applied as payment on secured indebtedness, when amount realized from sale is insufficient.

See also, 200 N.C. 441, 157 S.E. 419.

This action was begun by the plaintiff, S. B. Parker Company, a judgment creditor of the defendant East Carolina Motor Company, to restrain the sale of land conveyed by said defendant to its codefendants, the Commercial Bank of High Point, N. C., and the Central Trust Company of Charleston, W Va., as trustees, to secure the payment of its note for the sum of $28,000, payable to bearer, and now owned by the defendant the Union Mortgage & Investment Company. Default having been made in the payment of said note, the land conveyed by the deed of trust had been advertised for sale by the defendant trustees, under the power of sale contained in said deed, on October 13, 1930.

The action was begun in the superior court of Craven county on October 11, 1930, and thereafter, on motion of the plaintiff, Geo. H. Roberts was appointed by the court as receiver of the defendant East Carolina Motor Company. The said receiver took possession of the land described in the deed of trust, and of the building located thereon, and under the orders of the court collected the rents for said land and building during the pendency of the action.

At May term, 1932, of the superior court of Craven county, judgment was rendered in the action, by consent, that the defendant the Union Mortgage & Investment Company recover of the defendant East Carolina Motor Company, on the note secured by the deed of trust, the sum of $12,000, with interest from the date of said judgment. It was ordered and decreed in said judgment that the land described in the deed of trust together with the building located thereon, be sold by the commissioner appointed by the court for that purpose, and that the proceeds of said sale, when the sale had been reported to and confirmed by the court, be applied to the payment (1) of the costs and expenses of the sale, and the unpaid costs of the action; (2) of the unpaid taxes on said land and building due to the city of New Berne, and the county of Craven; and (3) of the judgment in the action. It was further ordered that the remainder of the proceeds of said sale, if any, should be paid to the receiver of the defendant East Carolina Motor Company.

Pursuant to the order and decree of the court, the commissioner appointed therein sold the land described in the deed of trust, together with the building located thereon, on September 5, 1932, to the ...