Moore v. Rosser, 186 N.C. 766 (1923)

Sept. 19, 1923 · Supreme Court of North Carolina

186 N.C. 766

J. H. MOORE et al. v. ROSSER and CAMERON, Executors of J. H. SMITH et als.

(Filed 19 September, 1923.)

Mortgages — Injunction—Foreclosure.

Where, in a suit to restrain the foreclosure of a mortgage, it appears from the pleadings that there is a serious dispute between the parties as to the right of the mortgagee to proceed further and the amount due, the restraining order will be continued to the hearing.

Appeal from HaeNett, in open court, by defendants, from Horton, J., on 15 February, 1923.

Civil action. There was judgment continuing the restraining order till the hearing, and défendants excepted and appealed.

Marshall T. Spears for plaintiffs.

Hoyle & Hoyle for defendants.

Pee Cubiam.

The action is instituted by plaintiffs, mortgagors, against defendants, holders and1 owners of said mortgage, to restrain a sale of the property under powers contained in the instrument. It appearing on careful consideration of the verified pleadings and other affidavits that there is serious dispute between the parties, both as to the right to proceed further under the mortgage and also as to the amount due on same, we are of opinion that the judgment of his Honor continuing the restraining order to the hearing should be affirmed. Sanders v. Ins. Co., 183 N. C., 66; Proctor v. Fertilizer Works, 183 N. C., 153; Durham, v. R. R., 104 N. C., 262. This ruling to be without prejudice to the right of the parties to present and insist upon any and all material questions involved in the controversy and as set forth in their pleadings.

Affirmed.