Beeson Hardware Co. v. Carolina Mortgage Co., 215 N.C. 794 (1939)

May 24, 1939 · Supreme Court of North Carolina

215 N.C. 794

BEESON HARDWARE COMPANY v. CAROLINA MORTGAGE COMPANY, Trustee, KESWICK CORPORATION, Trustee, SECURITY NATIONAL BANK, Trustee, and CAROLINA DEBENTURE CORPORATION, and GEORGIA SPENCER WHITE.

(Filed 24 May, 1939.)

Appeal by plaintiff from Sink, J., at 20 January,- 1939, Term, of Guilford.

Affirmed.

D. H. Parsons for plaintiff, appellant.

W. G. Mordecai and Thos. W. Sprinkle for defendants, appellees.

Peb Cubiam.

The plaintiff, a second mortgagee, brought this action in High Point municipal court against the holders of the first mortgage to restrain its foreclosure and ascertain the amount of indebtedness secured by it, securing a restraining order as ancillary relief. Upon the hearing in the municipal court, the injunction was continued to the hearing. Upon appeal of the defendants to the Superior Court of Guilford County, the restraining order was dissolved, the judgment of the court below reversed, and the action dismissed.

While the principal controversy was over the application of the statute of limitations — C. S., 442, subsec. 2 — defendants’ brief may be considered in effect a demurrer ore tenus to plaintiff’s cause of action. As to this, while the plaintiff seeks to have the amount of the debt secured by the senior mortgage ascertained, it makes no challenge as to such amount except because of the inclusion therein of alleged usury. The case is controlled by Pinnix v. Casualty Co., 214 N. C., 760. Upon this authority, the judgment is

Affirmed.