36 S.E. 37 | N.C. | 1900
Cause came on to be heard upon report and exceptions thereto by defendants, before Allen, J., at January Term, 1900, of UNION. From the judgment rendered the defendant appealed.
(526) The complaint alleges that the defendant (mortgagee) sold the land of the plaintiff (mortgagor) and bought the same through an intermediary who afterwards conveyed to a son of the defendant, but that the real purchaser was the defendant; wherefore the plaintiff alleges that he "has the right to disaffirm said sale as a nullity or to affirm the same and hold the defendant to an account for the full value of said land (which he holds to be $565), which he now elects to do."
The answer denies that the defendant was interested in anywise in the purchase at the mortgage sale, and that the land is worth what the plaintiff alleges, avers that it brought full value, and that the plaintiff was present and made no objection at the sale, and the defendant sets up a counterclaim for sundry amounts due upon bonds executed by the plaintiff; wherefore he demands judgment for the difference.
The court referred the cause, and the defendant excepted.
The referee dismissed the action because the complaint did not state a cause of action within the jurisdiction of the Superior Court, on the ground, as we understand, that the plaintiff having in his complaint affirmed the sale, the difference between the amount the land brought and the mortgage debt, was within the jurisdiction of a justice of the peace. The court reversed this action and re-referred the case, and the defendant appealed.
The plaintiff moves in this Court to dismiss the appeal as (527) premature. An appeal from an order of re-reference is premature. Clark's Code (3 Ed.), sec. 548, p. 750, and cases there cited. But that is where the original reference is not called in question. Here the original reference was erroneous because there was a plea in bar, and a reference before such a plea is passed upon is appealable at once. Smith v.Goldsboro,
The referee had no jurisdiction to dismiss the action, which power belongs to the court alone, but taking his action as substantially a ruling that the complaint did not state a cause of action within the jurisdiction of the Superior Court, it was erroneous. The jurisdiction depends upon the sum demanded in good faith (which here exceeded $200), and was not ousted by reason of the plaintiff being mistaken in his right *332
under the law to recover the sum he claimed. Sloan v. Railroad, at this term; Martin v. Goode,
The plaintiff could have disaffirmed the sale, and have procured an order of resale, upon proof of his allegation that the defendant was the real purchaser. Gibson v. Barber,
The plaintiff relies upon Froneberger v. Lewis,
The reference was probably made under the authority of Brothers v.Brothers,
Error.
Cited: Hahn v. Health,