Council v. . Floyd

| N.C. | May 20, 1936

Civil action, instituted 16 December, 1931, to recover on promissory note and to foreclose deed of trust given as security for loan. Judgment by default, for the want of answer or plea, entered 25 January, 1932, foreclosure decreed and commissioner of sale appointed. Sale held 7 March, 1932, report filed same day, and sale confirmed 29 March, 1932.

On 29 September, 1933, the defendant herein instituted suit for usury, based upon the record in this case, and was nonsuited at the November Term, 1934, on the ground of estoppel and laches.

Thereafter, on 18 February, 1935, in preparation of renewing his usury claim and in an effort to remove the pleas in bar, the defendant entered "special appearance" (Harrell v. Welstead, 206 N.C. 817" court="N.C." date_filed="1934-07-11" href="https://app.midpage.ai/document/harrell-v--welstead-3649638?utm_source=webapp" opinion_id="3649638">206 N.C. 817, 175 S.E. 283" court="N.C." date_filed="1934-07-11" href="https://app.midpage.ai/document/harrell-v--welstead-3649638?utm_source=webapp" opinion_id="3649638">175 S.E. 283), and moved to set aside sale and judgments for alleged irregularities. Motion denied. Defendant appeals. On the facts found and embodied in the judgment denying motion to set aside sale and vacate original judgments, the defendant has no just ground to complain.

He sought to use the original record as basis for an action of usury, and not until he was frustrated in that action did he seek his present remedy. No error has been made to appear.

Affirmed.