Bennett v. Mortgage Service Corp., 206 N.C. 902 (1934)

Feb. 28, 1934 · Supreme Court of North Carolina

206 N.C. 902

KELLEY E. BENNETT et al. v. MORTGAGE SERVICE CORPORATION et al.

(Filed 28 February, 1934.)

Mortgages H b — Foreclosure is properly restrained to hearing when bona fide controversy exists as to whether note is due and the amount thereof.

Where it appears from verified, pdeadings that there is a dona fide ■ controversy between the parties as to whether the note secured by the mortgage is due, and if due by reason of default in the payment of installments thereon, as to the amount due, the mortgagor’s order temporarily restraining the foreclosure of the mortgage is properly continued to the final hearing, without prejudice to the right of the mortgagees to move for the appointment of a receiver. C. S., 859.

Appeal by defendants from Alley, J., at Chambers, in Franklin, N. C., on 22 November, 1933. From SwaiN.

Affirmed.

This action was begun in the Superior Court of Swain County to restrain the defendants from selling under the power of sale contained in a deed of trust executed by the plaintiffs the land described therein, for an accounting to determine the amount due on the notes secured by said deed of trust, and for other relief.

The action was heard on the motion of the defendants that the temporary restraining order issued in the action be dissolved. The motion was denied.

From judgment continuing the temporary restraining order to the final hearing, the defendants appealed to the Supreme Court.

Edwards & Leaiherman for plaintiffs.

W. A. Devin, Jr., and Harkins, Van Winlcle & Walton for defendants.

Per Curiam.

It appears from the verified pleadings in this action that there is a bona fide controversy between the parties (1) as to whether the notes executed by the plaintiffs and secured in the deed of trust containing the power of sale under which the defendants have advertised the land described therein for sale, are now due, and (2) if said notes are now due, because of default by plaintiffs in paying installments thereon, as to the amount now due on said note. For this reason, the temporary restraining order was properly continued to the hearing. Parker Co. v. Bank, 200 N. C., 441, 157 S. E., 419.

The validity of chapter 74, as amended by chapter 525, Public-Local Laws of North Carolina, 1933, is not presented by this appeal.

The judgment is affirmed without prejudice to the right of the defendants to move for the appointment of a receiver in this action, as provided by statute. C. S., 859.

Affirmed.