Barrett v. . Barnes

ClabesoN, J. The only, exception and assignment of error is made by D. C. Barnes, trustee, and that is to the judgment set out in the record. The judgment of the court below was consented to by all the parties to the suit, except D. 0. Barnes, trustee. The objection by him is to the order of the court in regard to the fund in his hands as trustee, $1,122.09, or thereabouts, arising from the sale of the land: “It is adjudged that W. E. Barrett is the owner of, and entitled to, the entire sum of money, and every part thereof, in the hands of the said trustee, arising from the sale of the land described in the complaint,” etc. From the evidence it will be seen that this fund was a surplus arising from the sale of about 300 acres of land of T. T. Barrett, sold by D. C. Barnes as trustee. There was sufficient funds to settle the notes secured *158 by two deeds in trust. D. C. Barnes, trustee, sold tbe land on 25 March, 1922. Tbe judgments were obtained against T. T. Barrett, as will appear in tbe case agreed, in April, 1921, and tbe trustee bad actual notice of tbe judgments, and demand bas been made 'on bim by tbe judgment creditors to pay these judgments. “Upon filing a judgment roll upon a judgment affecting tbe title of real property, or directing, in whole or in part, tbe payment of money, it shall be docketed on tbe judgment docket of tbe Superior Court of tbe county where tbe judgment roll was filed, and may be docketed on tbe judgment docket of tbe Superior Court of any other county upon tbe filing with tbe clerk thereof a transcript of tbe original docket, and is a lien on tbe real property, in tbe county where tbe same is docketed, of every person against whom any sucb judgment is rendered, and which be bas at tbe time of tbe docketing thereof in tbe county in which sucb real property is situated, or which be acquires at any time thereafter, for,ten years from tbe date of tbe rendition of tbe judgment. But tbe time during which tbe party recovering’ or owning sucb judgment shall be, or shall have been, restrained from proceeding thereon by an order of injunction, or other order, or by tbe operation of any appeal, or by a statutory prohibition, does not constitute any part of tbe ten years aforesaid as against tbe defendant in sucb judgment, or tbe party obtaining sucb orders or making sucb appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith.” C. S., sec. 614. “A mortgagee who sells under the mortgage is not liable to a subsequent mortgagee or judgment creditor for tbe surplus unless he has actual notice thereof.” (Italics ours.) Norman v. Hallsey, 132 N. C., 6. “A sale of land under an execution on a junior judgment passes the title to tbe purchaser encumbered with tbe lien of prior docketed judgments ; but where tbe sale is made upon execution on the senior judgment the title passes to the purchaser unencumbered; and tbe lien of any junior docketed judgments is transferred to tbe fund arising from the sale; and it is tbe duty of tbe officer making tbe sale to apply it to the satisfaction of the several judgments in the order of their priority, whether be bas executions in bis bands or not.” Gambrill v. Wilcox, 111 N. C., 42. Clark, C. J., in Gammon v. Johnson, 126 N. C., 64, says: “In general, all encumbrances, whether prior or subsequent encumbrances, as well as the mortgagor, should be parties to a proceeding for foreclosure, and judgment creditors as well as mortgagees.” (Italics ours.) Jones v. Williams, 155 N. C., 179, is not in conflict under the facts in this case. As the case goes back to the Superior Court to make the judgment creditors parties, the numerous cases cited in plaintiffs’ brief will not now be considered. *159 For a complete determination of the rights of the litigants , in this canse, the judgment creditors should be made parties to this suit, or voluntarily come in and make themselves parties. This must be done, to the end that their rights, if they have any, under the facts in this case, may be safeguarded and asserted and a proper application of the surplus be adjudged. Outlaw v. Outlaw, 184 N. C., at p. 259. The consent judgment is modified to this extent. Modified and affirmed.