Legal Opinion

McMillan v. . Love

Supreme Court of North Carolina

Decided January 5, 1875PublishedCited by 3 opinions

SümmaRy proceedin'os, in the nature of Ejectment, tried before hi? Honor, Judge Buxton, at the Spring Term, 1874, of Cumberland Superior Court. The plaintiff originally instituted proceedings under the “Landlord and Tenant” Act, before a Justice of the Peace, which were brought by the appeal of the defendant, to the Superior Court.

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SümmaRy proceedin'os, in the nature of Ejectment, tried before hi? Honor, Judge Buxton, at the Spring Term, 1874, of Cumberland Superior Court. The plaintiff originally instituted proceedings under the “Landlord and Tenant” Act, before a Justice of the Peace, which were brought by the appeal of the defendant, to the Superior Court. The facts, as they appeared on the trial below, are substantially as follows: The defendant and wife, on the 4th September, 1869, executed a mortgage-to one Baker, to secure the sum of $800, due six months thereafter, with a power of sale, in case the payment was…

1Opinion of the CourtPeaeson, C. J.

This case does not come within the operation of “ the Landlord and Tenant act.” McCombs v. Wallace, 66 N. C. 481, and-at this term.

The writ of restitution was a matter of course according to-the principle established by Perry v. Tupper, 70 N. C. 538.

The position, “there can be no restitution to Love for all of his rights passed by the assignment, in bankruptcy, and there can be no restitution to McRae, for he never had possession, is a mere play upon words. McRae, as assignee, in the forcible language of the books, stands in the shoes of Love; that is, he-takes his place, and becomes entitled…

2Cases cited2 opinions

  1. Wm. McCombs v. . Albert WallaceSupreme Court of North Carolina · 1872
  2. Perry v. TupperSupreme Court of North Carolina · 1874

3Cited by3 opinions

  1. Taylor v. . TaylorSupreme Court of North Carolina · 1893
  2. Riley v. . JordanSupreme Court of North Carolina · 1876
  3. Crinkley v. EgertonSupreme Court of North Carolina · 1893

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