Porter v. Jefferson Standard Life Insurance, 207 N.C. 646 (1935)

Jan. 28, 1935 · Supreme Court of North Carolina

207 N.C. 646

AULENO FLYNT PORTER et al. v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.

(Filed 28 January, 1935.)

1. Mortgages H b — Continuance of restraining order against foreclosure of first deed of trust in suit by junior lienor upheld in this case.

In a suit by a junior lienor to restrain foreclosure under a first lien on the lands, the continuance of the temporary restraining order to the hearing upon the contention of the junior lienor that the amount due on the first lien is in dispute will not be disturbed on appeal where it appears that the continuance results in no injury to the first lienor, although the first lienor contends that the amount secured by the first deed of trust is no longer in dispute.

3. Injunctions D b—

A temporary restraining order will ordinarily be continued to the hearing upon a prima facie showing for injunctive relief when it appears that no harm can come to defendant from such continuance, and great injury might result to plaintiff from its dissolution.

Appeal by defendants from Hill, Special Judge, at July-August Term, 1934, of Fobstth.

Civil action by bolder of tbe second deed of trust to restrain foreclosure of first deed of trust until tbe correct amount of tbe indebtedness due under tbe prior lien can be ascertained and determined.

From an order continuing tbe temporary injunction to tbe bearing, tbe defendants appeal.

William, Porter for plaintiffs.

Manly, Hendren & Womble and. Smith, Wharton & Hudgins for defendants Insurance Company and Julian Price, trustee.

Stacy, C. J.

Plaintiffs ground tbeir action on tbe decisions in Wilson v. Trust Co., 200 N. C., 788, 158 S. E., 479, and Parker Co. v. Bank, 200 N. C., 441, 157 S. E., 419, where it was beld tbat a junior lienholder is entitled to know tbe amount legally due and collectible under a prior encumbrance so tbat be may properly protect bis interests against foreclosure. Broadhurst v. Brooks, 184 N. C., 123, 113 S. E., 576; Riley v. Sears, 154 N. C., 509, 70 S. E., 997.

Speaking directly to tbe point in Wilson v. Trust Co., supra, Connor, J., delivering tbe opinion of tbe Court, said: “Plaintiff in this action is not tbe debtor on tbe bonds secured in tbe (first) deed of trust; be is junior mortgagee. As such, be is under no obligation, legal or moral, to pay tbe amounts due on tbe bonds. He has tbe right, enforceable in this action, to have tbe amount due on tbe bonds secured by tbe deed of trust, which has priority over tbe mortgage by which bis note is secured, ascertained and definitely determined, and upon paying tbe amount so ascertained and definitely determined to have tbe bonds and tbe deed of trust assigned to him. Elliott v. Brady, 172 N. C., 828, 90 S. E., 951. Until this amount, which is in controversy between plaintiff and tbe answering defendants, has been ascertained and definitely determined, plaintiff is entitled to have tbe sale of tbe land described in tbe complaint, under tbe power of sale contained in tbe deed of trust, enjoined and restrained. Parker Co. v. Bank, 200 N. C., 441, 157 S. E., 419.”

In tbe instant case it is contended by tbe defendants, to which tbe plaintiffs do not assent, tbat tbe amount secured by tbe first deed of trust is no longer in dispute, -but as tbe continuance of tbe temporary restraining order is without apparent injury to tbe defendants, tbe judgment will not be disturbed. Boushiar v. Willis, ante, 511, and cases there cited.

It is tbe general practice of equity courts, upon a prima facie showing for injunctive relief, to continue tbe restraining order to tbe bearing, when it appears that no harm can come to the defendant from such continuance, and great injury might result to the plaintiff from a dissolution of the injunction. Cullins v. State College, 198 N. C., 337, 151 S. E., 646; Hurwitz v. Sand Co., 189 N. C., 1, 126 S. E., 171; Seip v. Wright, 173 N. C., 14, 91 S. E., 359.

Affirmed.