Bost v. . Lassiter

MerbjmoN, C. J.: The counsel of the appellants, relying on Long v. Jarratt, 94 N. C., 445, and other like cases, contended earnestly on the argument that the plaintiff should have sought the relief he seeks by this action by a motion, or petition, in the action mentioned, and particularly referred to in the complaint, wherein the present defendants, except C. A. Pitts, were plaintiffs, and he was defendant, because, as he contends, that action is not yet ended, and the subject-matter of the present action was pertinent to, and embraced by, the former. This contention is unfounded. The purpose of the action referred to was simply to obtain judgment for a balance of the purchase-money of the land, and to sell the latter, if need be, to satisfy the judgment. It was no part of its purpose to settle and adjudicate the rights of third parties who may have had liens like that claimed by the plaintiff, because such liens were not necessarily part of, or incident to, the cause of action, nor was it necessary to pass upon and conclude them in settling and administering the rights of the parties then before the Court. The purpose of the present action, as we shall presently see, is entirely different and distinct from that of the one referred to. Moreover, the judgment in the latter action was a final one. The matter in litigation — the cause of action — was settled, determined, by it. Nothing remained to be done but to enforce the judgment, and only motions and proceedings for that purpose were pertinent and could be entertained, except motions to set the judgment aside for irregularity, or because of “mistake, inadvertence, surprise or 'excusable *497 neglect,” as allowed by the statute (The Code, §274); Smith v. Fort and McLaurin v. McLaurin, decided at the present term, and cases there cited. The purpose of this action is to enforce the alleged lien of the plaintiff’s judgment upon the interest of the defendant C. A. Pitts, in the land mentioned, which he cannot enforce by ordinary process of execution, because there is some balance of the purchase money of the land yet unpaid. In such case, the party having the lien is put to his action to-enforce it. This is done by ascertaining the balance of the-purchase-money, selling the land under the order of the-Court, if need be, and applying the proceeds of the sale-first to the payment of such balance, and then the surplus, or so much thereof as'may be necessary, to the discharge of the creditor’s lien and debt. Trimble v. Hunter, 104 N. C., 129, and the cases there cited. The ground for the plaintiff’s application for relief by injunction pending(the action is the allegation, in substance and effect, in the complaint — not made as explicit and certain as it should be — that the judgment in the action referred to in favor of the defendant Lassiter, executrix, against the defendant C. A. Pitts was for a greater amóuut than was due, was collusive and fraudulent, and intended to defeat the rights of the plaintiff and other creditors of C. A. Pitts, &c. The purpose is to prevent the defendants, pending the action, from selling the land to satisfy the judgment so alleged to be fraudulent, thus embarrassing and confusing the plaintiff’s rights, and, perhaps, defeating them altogether as to the lien. The evidence makes it clear that the plaintiff has a judgment, as alleged by him, against the defendant C. A. Pitts; that the latter has an equitable interest in the land specified, and that that judgment is a lien thereupon that may be enforced by this action. The evidence as to the alleged-fraudulent judgment is less satisfactory. The matter is not *498 free from doubt, in view of the evidence before us. There are facts — some admitted, others denied — that tend to prove fraud; there are others that tend quilcas strongly to prove the contrary. The defendants confess and avoid in material respects. They cannot suffer serious injury by delaying the sale of the property until the action can be determined upon its merits. In such a case, the .injunction will be continued until the hearing. Whitaker v. Hill, 96 N. C., 2, and cases there cited. The defendant alleges and insists that the sureties of the plaintiffs’ judgment are solvent, and he might readily collect the judgment from them. It is sufficient to say that he is not bound to collect his debt from them. He has the right, and he may deem it just and his duty, to collect it from the principal debtor. ' There is no error. Affirmed.