Brown v. Hoover, 77 N.C. 40 (1877)

June 1877 · Supreme Court of North Carolina

77 N.C. 40

DEMPSEY BROWN v. VALENTINE HOOVER.

Praetiee — Mortgage—Foreclosure—Jurisdiction,

1. Where, in an action to foreclose a mortgage executed by the defendant in 1801, it appeared that the defendant had obtained a discharge in-Bankruptcy in 1873, aud that the mortgaged premises had been allotted-to him as a homestead by proceedings in the Bankrupt Court; Reid,That the plaintiff was entitled to a decree of foreclosure.

2. In such case, the action was properly instituted in tlie State Court.

Civil ActioN, tried at Spring Term, 1877, of DavidsoN Superior Court, before Kerr, J.

At the request of the defendant, the plaintiff and one-Charles Hoover became sureties on a bond given by the defendant to one Mendenhall on the 19th of December, I860,, for the sum of $700, and to indemnify . his sureties from all-loss, the defendant executed to them a mortgage on a tract of land, dated the 15th of February, 1861. Shortly after the war Mendenhall brought suit on the bond against the principal and sureties and recovered judgment. Execution issued and the plaintiff wás compelled to pay, and did pay $452.45 of said judgment. On the 22d of April, 1873, the-defendant filed his petition in bankruptcy,^but did-not mention the name of this plaintiff in the list of his creditors, except as one of the parties defendant in the said judgment recovered by Mendenhall, not having had notice of any payment by plaintiff' on said judgment. His discharge in bankruptcy was obtained on the 5th of July, 1873. The plaintiff’s claim was not proved in the Bankrupt Court, and the-land conveyed iu the mortgage was assigned to the defendant as a homestead, under the proceedings in bankruptcy. By this action, which -was commenced on the 5th day off October, 1875, the plaintiff seeks to have the land subjected to the- payment of his debt, in accordance with the terms off said mortgage deed. During the pendency of this action-, and after the pleadings were filed, the plaintiff upon petition • to the District Court of the United States obtained leave to proceed in the State Court. Upon these facts, Iiis Honor was-' of opinion with the plaintiff, and gave judgment that the mortgaged premises be sold and the proceeds applied to the debt ef plaintiff. Erom which judgment the defendant appealed.

Mr. John A. ■Gilmer, for plaintiff.

Messrs. M. H. Pinnix and F. C. Robbins, for defendant.

Read®, J.

Upon the facts agreed the judgment of the-Court below was clearly right.

The lien created by the mortgage of 1861 was valid as; against the defendant’s claim of homestead. And it was also valid as against the creditors of the defendant and his as-signee in bankruptcy. .

Whether the plaintiff should have sought his rights-through the United States or the State Courts, is of.small-moment to the defendant. ¥e are of the opinion however*, that this procedure in the State Court was right.

There is no error. This will be certified.

PeR CüRiam. .Judgment affirmed...