Opinion · Supreme Court of North Carolina
Fraley v. March
68 N.C. 160
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1873-01-15
- Topic
- general
Reads, J. The law of the venue of actions, with reference to the residence of the parties does not govern this case, but the law of the venue with reference to the “subject of the action.” It is substantially an action “ for the foreclosure of a mortgage of real property;” and that must be tried in the county where the land is situate. C. C. P. 66.
Citator
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- Cited by
- 7 opinions
FRALEYv. MARCH,68 N.C. 160(1873)
B. F. FRALEY v. A. H. MARCH and others, Administrators of C. F. Fisher,
and others, heirs, etc.
Supreme Court of North Carolina
(January Term, 1873.)
The plaintiff further alleges, that at the time of his death, the intestate, Fisher, owed him upwards of $5,000, and that in a settlement with Craige and Caldwell, two of the administrators, he, the plaintiff, accepted from them the said two notes on March, the other administrator and defendant, as so much cash in part payment of his claim; the administrators, Craige and Caldwell, informing him that the land sold by Fisher to March was bound for the payment of the said notes, and that he, the plaintiff, would be entitled to the benefit of the land, as collateral security for the payment of the balance of the purchase-money. That upon this information and assurance, he, the plaintiff, accepted the notes, and took assignments, etc. That the defendant, March, has wholly failed to pay the notes, or any part thereof, although often requested, and has kept possession of the land, using the same and appropriating the profits thereof to his own use.
The plaintiff demands judgment, that he be subrogated to the rights of the intestate, the said Fisher, his heirs at law, and his personal representatives, in regard to the contract concerning said land; and that defendant March be required specially to perform the contract on his part, by the payment of the residue of the purchase-money for said land to plaintiff with interest or in case he, the defendant March, refuses to pay, etc., that the land be sold, and the proceeds of sale be applied in payment of the debt due the plaintiff, and for such other relief, etc.
At the same term of the Court, the defendant, March, files a demand in writing to have the place of trial changed; alleging that the (162) county of Davidson, and not Rowan, is the proper place in which to try the action. His Honor being of opinion withPage 117defendant, ordered the case to be removed into the Superior Court of Davidson County. From this judgment, the plaintiff appealed.
PER CURIAM. Judgment affirmed.Cited: Manufacturing Co. v. Brewer,105 N.C. 446;Connor v. Dillard,129 N.C. 51;Eames v. Armstrong,136 N.C. 394;Councill v. Bailey,154 N.C. 56.