Wilson v. Allsbrook

• Decision Date: 09 November 1932
• Docket Number: 297.
• Citation: 166 S.E. 313,203 N.C. 498
• Parties: WILSON et al. v. ALLSBROOK et al.
• Court: North Carolina Supreme Court

166 S.E. 313

203 N.C. 498

WILSON et al. v. ALLSBROOK et al.

No. 297.

Supreme Court of North Carolina

November 9, 1932

Appeal from Superior Court, New Hanover County; Grady, Judge.

Action by E. McL. Wilson and wife against O. O. Allsbrook, trustee and another. From the judgment, plaintiffs appeal.

Error and remanded.

In action to restrain threatened foreclosure, confirmation of referee's report, which made no finding on issue whether note secured by deed of trust had been paid or was to be paid from rents, held error.

Civil action to restrain threatened foreclosure under third deed of trust, and for an accounting.

On April 21, 1930, plaintiffs executed a note to the defendant E. L. White for $694.16, secured by third mortgage, or third deed of trust, on plaintiffs' home and dairy; O. O Allsbrook, employee of defendant's company, being named as trustee therein.

At the February term, 1932, New Hanover superior court, the cause was by consent referred to Hon. K. O. Burgwin to find the facts and report the same together with his conclusions of law to the court. It was further adjudged that the temporary restraining order be continued upon execution by the plaintiffs of an indemnity bond in the sum of $500 otherwise, the restraining order was to be dissolved and vacated if said bond was not furnished within ten days.

The sale was thereafter had on March 25 as plaintiffs were unable to post the required bond, but the matter is still in custodia legis.

The referee in his report states the account between the parties, but he fails to find whether the note secured by the third deed of trust, as alleged by plaintiffs, has been paid or was to be paid from rents collected by the defendant. Exception; overruled.

From a judgment affirming the report of the referee, the plaintiffs appeal, assigning errors.

I. C. Wright and R. G. Grady, both of Wilmington, for appellants.

Chas. B. Newcombe and John A. Stevens, both of Wilmington, for appellees.

STACY, C.J. (after stating the case).

From the pleadings, it would seem that plaintiffs are entitled to a finding on their allegation that the note secured by the third deed of trust has been paid or was to be paid from rents collected by the defendant. Stockton v Lenoir, 201 N.C. 88, 158 S.E. 856; Id., 198 N.C. 148, 150 S.E. 886; Parker Co. v. Bank, 200 N.C. 441, 157 S.E. 419; Justice v. Coxe, 198 N.C. 263, 151 S.E. 252; National Bank v. Winslow, 193...