john.W. Ellis v. . Samuel Hussey
Supreme Court of North Carolina
This was a civil action, tried on complaint and demurrer, before His Honor, Judge Mitchell, at Fall Term 1871, of Ire-dell Superior Court.
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This was a civil action, tried on complaint and demurrer, before His Honor, Judge Mitchell, at Fall Term 1871, of Ire-dell Superior Court. The plaintiff, in his complaint set forth in substance that one Redwine being the owner of certain real estate, contracted to sell the same to the defendant, and that defendant executed his note for the price, that the legal title had passed by a series of conveyances from Redwine to the plaintiff,- and that the plaintiff had likewise purchased the note, had brought suit on the note, obtained judgment, and that the execution which issued thereon had been…
1Opinion of the CourtRodmAN, J.
A vendor who contracts to convey on payment of the purchase money may be considered as between the parties a mortgagee. It has always been held that a mortgagee has two remedies which he may prosecute at the same time, one in personam for his debt, the other in ram to subject the mortgaged property, and it never was supposed that a resort to the first waived the second, or that after a sale of the mortgaged property, he could not resort to the first for any unpaid residue. 2 Story Eq., Jur. 1007, 1034, 1035, c. 9th edition, citing Thurber v. Jewett, 295.
It is true, that the plaintiff in this…
2Cited by14 opinions
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- Brannock v. FletcherSupreme Court of North Carolina · 1967
- Allen v. . TaylorSupreme Court of North Carolina · 1887
- Crawford v. . AllenSupreme Court of North Carolina · 1925
- Crawford v. AllenSupreme Court of North Carolina · 1925
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