Byrd v. . Hicks , 184 N.C. 628 ( 1922 )

Action, heard on return to a preliminary restraining order.

The action is to restrain sale of certain lands sold to plaintiff by defendant Georgie Hicks, and advertised to be sold under a deed of trust given to secure purchase price. On the facts presented there was judgment continuing the restraining order till the hearing, and defendants excepted and appealed. On the hearing there were facts in evidence on the part of plaintiff tending to show that on 18 December, 1919, defendant Georgie Hicks sold at auction and conveyed to plaintiff five tracts of land situate in said county, for $18,074.73. That plaintiff at time of sale paid cash to the amount of $3,614.97, and executed for remainder of purchase price seven promissory notes, payable one, two, three, etc., to seven years from date, each for sum of $2,065.68, giving also a deed of trust on the property to I. R. Williams, with power of sale to secure said indebtedness. That on 21 January, plaintiff paid to the grantor, Miss Hicks, on said indebtedness, the interest on the notes, $867.60, and made a further payment thereon of $82.60, the payee agreeing to extend the period of maturity for said indebtedness for one year, etc., or until 18 December, 1921. That in October, 1921, plaintiff, finding that he would be unable to carry out the terms of sale, and meet his indebtedness for the land, proposed in writing to surrender his entire interest in the property and lose all payments made by his to date to Miss Hicks, on cancellation of the remainder of the debt, and that said proposition was accepted in writing by defendant, and she took possession of the property pursuant to the agreement.

There was denial on part of defendant that there had been any binding acceptance of plaintiff's proposition, and with averment further that the first note of $2,065.68 had been transferred at the time of sale to the Atlantic Coast Realty Company, for conducting the sale, and by them transferred for value to one S. T. Hooker. That in order to grant to plaintiff the one-year extension referred to in plaintiff's affidavits, it became necessary for defendant to purchase one-half of the note held by said Hooker; that he is now the owner of the other half of said note, and insisting on a sale of the property.

From a perusal of this evidence, and as now advised, it appears that there are serious questions of fact presented involving the right of defendant to proceed further under the deed of trust, and under our decisions on the subject, his Honor has correctly ruled that the restraining order be continued to the final hearing. Seip v. Wright,173 N.C. 14; Tise v. Whitaker, 144 N.C. 507.

The Court is of opinion further that in order to a full determination of the rights and interests involved in this controversy, it is necessary that S. T. Hooker, at present holding a one-half interest in the first note secured by the deed of trust, shall be made a party.

Judgment affirmed.