In re Gibbs , 205 N.C. 312 ( 1933 )

Pee Cubiam.

The appellant does not controvert the right of a junior mortgagee ordinarily to plead the statute against a senior mortgagee but lie contends that the defense is not available here because not pleaded. Guthrie v. Bacon, 107 N. C., 337. Section 405 of the Consolidated Statutes applies to actions in which formal pleadings are filed. The present proceeding is in the nature of a controversy without action upon an agreed statement of facts for the distribution of a fund arising from the sale of real estate under a deed of trust. C. S., 2592, 2593. The rights of the parties are to be determined by the facts, and according to the facts the appellant’s claim is clearly barred by the statute. C. S., 437, 2589. Judgment

Affirmed.