99 S.E. 199 | N.C. | 1919
On the return of the restraining order the plaintiff moved for the continuance thereof to the hearing, and the defendants moved to *456 vacate the restraining order and to dismiss the action. The court denied the motions of the defendants and continued the restraining order to the hearing. Appeal by defendants. The complaint alleges that at Spring Term of Watauga, 1918, a consent judgment was entered in the case of J. C. Cook against these defendants wherein John H. Bingham was appointed commissioner to sell a town lot in Boone, described in said judgment, and by consent he was directed to make deed in fee to the purchaser upon payment of the purchase money; that the commissioner duly advertised and sold the property. The plaintiff became the purchaser and, having paid the purchase money in full, the commissioner executed to him a deed in fee for the property. The complaint alleges further that prior to the date of said consent judgment, Hancock Bros., Co. and the Lynchburg Shoe Co. had obtained judgments against J. C. Cook which were docketed in Watauga and were assigned to these defendants.
The complaint avers that the defendants, having consented to a judgments under which the land of Cook was sold, that title in fee should be made to the purchaser, and neither then nor at the time the plaintiff bought the land made known the fact that said defendants held said docketed judgments, which were liens on said lands, are stopped to sell the land under said judgments.
The plaintiff seeks to restrain a sale of the land under said judgments as a cloud upon his title and to have them canceled. The judge finds the facts stated in the complaint to be true, there being no evidence to the contrary, and properly continued the restraining order to the hearing. The demurrer, that the complaint did not state facts sufficient to constitute a cause of action, was properly overruled.
Affirmed.
Cited: Church v. Vaughan,
182 N.C. 577 . *457 (433)
