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M. C. KISER Et Al. v. JESSE COMBS
Avery, J.: AVhatever difficulty wo might have otherwise *642 encountered in establishing the identity between the present plaintiffs and the grantees, to whom the legal estate passed by the mortgage deed of Blackwell and wife, we are relieved by the admission in the answer that the mortgage deed was executed to “ the plaintiffs.” The fact that the foreclosure sale was ineffectual to transfer the title of Blackwell and wife, if admitted, would not therefore materially affect the right of the plaintiffs to recover on their legal title in this action, in which they declare and demand judgment that they are the legal owners and entitled to the possession.
Wittkowsky v. Watkins, 84 N. C., 456 ; Bruner v. Threadgill, 88 N. C., 361. In this view of the controversy it becomes unnecessary to determine whether the affidavit, which constituted a part of the foreclosure proceeding, was insufficient, as was contended on behalf of the defendants. If the defendants were in truth non-residents of the State it may be questionable whether a more specific allegation that they had property in this State was not essential in order to give the (burt j urisdiction in rem.
The plaintiff's, being in possession, may determine whether the proceeding, a copy of which accompanied the statement of the case on appeal as an exhibit, was amenable to objection for failure to comply with the provisions of The Code, §218, or under the Fourteenth Amendment to the Federal Constitution, as insufficient to subject the property of a citizen of another State. Winfree v. Bagley, 102 N. C., 513. Another suit may still be brought for foreclosure if upon an investigation of the facts they are so advised.
The Judge might have told the jury that in any view of the testimony the plaintiffs, as the admitted holders of the legal title by virtue of the mortgage deed, were entitled to recover even if the foreclosure suit was not conclusive on the defendants, and it is therefore immaterial whether there was a harmless error in his instructions or not. The judgment is Affirmed.