Fisher v. Finance Co., 200 N.C. 9 (1930)

Dec. 10, 1930 · Supreme Court of North Carolina

200 N.C. 9

SAMUEL J. FISHER v. THE FINANCE COMPANY et al.

(Filed 10 December, 1930.)

Mortgages H Tb — In this case held: temporary order restraining foreclosure of deed of trust was properly dissolved.

The foreclosure sale under a power in a deed of trust securing the balance of purchase money will not be restrained for a breach of warranty against tax assessment liens where it is made to appear that the plaintiff had agreed to assume the assessment and receive a credit of the amount upon his note for the purchase price, the credit having been made according to the agreement.

Appeal by plaintiff from Oglesby, J., at October Term, 1930, of Bttk combe.

Civil action to restrain sale of land under foreclosure.

From a judgment dissolving tbe temporary restraining order, the plaintiff appeals, assigning error.

Joseph W. Little for plaintiff.

No counsel for defendants.

Stacy, O. J.

Plaintiff purchased a lot of land from the defendant, the Finance Company, taking a deed therefor with full covenants of warranty, and executed a deed of trust thereon to secure payment of part of the purchase price. Foreclosure is sought to be enjoined on the ground that certain outstanding tax assessments, amounting to approximately $1,500, constitute breach of warranty in defendant’s deed. Coble v. Dick, 194 N. C., 732, 140 S. E., 745.

There is evidence that the plaintiff subsequently agreed to assume payment of said assessments on condition that a credit of like amount be made upon his notes given for the purchase price of the land, which was done.

The temporary restraining order was, therefore, dissolved for want of meritorious showing.

Affirmed.