Legal Opinion

Montague v. Raleigh Savings Bank

Supreme Court of North Carolina

Decided February 5, 1896PublishedCited by 6 opinions

Motion for an injunction to restrain the defendants, mortgagees, from selling the lands mortgaged to them by J. B. .Burwell, (the assignor of plaintiff,) heard before Moloer, J., at Chambers, in Raleigh, during January Term, 1896, of Wake Superior Court. The injunction was refused and plaintiff appealed.

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Motion for an injunction to restrain the defendants, mortgagees, from selling the lands mortgaged to them by J. B. .Burwell, (the assignor of plaintiff,) heard before Moloer, J., at Chambers, in Raleigh, during January Term, 1896, of Wake Superior Court. The injunction was refused and plaintiff appealed. The complaint of plaintiff, used as *an affidavit, sets forth the execution to him by J. E. Eunvell, on November 11, 1895, of a deed of assignment conveying all bis property for the benefit of creditors; that the personal property is sufficient to pay only a small part of the debts ; tliat…

1Opinion of the Court

Clark, J.:

There seems no serious contention that there is any dispute as to the amount due upon each mortgage. The answers deny that there is any, and the complaint does not clearly and distinctly aver that there is. The •case, therefore, does not fall within the principle laid down in Purnell v. Vaughan, 77 N. C., 268.

The allotment of a homestead, if made, would not interfere with the right of the mortgagees to sell under their mortgages, which contain no reservation of the homestead. There is no allegation that either of the mortgaged tracts is certainly of greater value than the mortgage…

2Cases cited1 opinion

  1. Purnell v. . VaughanSupreme Court of North Carolina · 1877

3Cited by6 opinions

  1. Cheek v. . WaldenSupreme Court of North Carolina · 1928
  2. Farris v. . HendricksSupreme Court of North Carolina · 1929
  3. Lawton Mill & Elevator Co. v. Farmers & Merchants Bank of CincinnatiSupreme Court of Oklahoma · 1925
  4. Kane v. JonasenNebraska Supreme Court · 1898
  5. Miller v. . LittleSupreme Court of North Carolina · 1937

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