Penland v. Red Hill Methodist Church

DeNNY, J. The appellant insists he had the right to institute this action in Yancey County and to have the case tried there, notwithstanding the fact that the lien he seeks to foreclose was filed in Mitchell County, where the land lay. He is relying upon Sugg v. Pollard, 184 N. C., 494, 115 S. E., 153. There the action was brought in Lee County and the lien had been filed in Pitt County. However, it will be noted that in that case there was no motion for removal to Pitt County. The ’defendant was duly served with summons, filed an answer, and participated in the trial in Lee County. The validity of the judgment was thereafter challenged on the ground that Lee County was the wrong venue. This Court held that the statute does not expressly prescribe *173 venue for an action to foreclose a lien, therefore if tbe venue was wrong, the failure to demand change of venue in apt time cured the defect. The Court further pointed'out that “If the action had been brought in Lee County to foreclose a mortgage upon land lying in Pitt, a decree of foreclosure appointing a commissioner to sell said land rendered in Lee, there being no motion to remove taken in apt time, would have been valid.” However, the defendants herein, in apt time filed their motion for removal to the county where the lien had been filed and where the real property involved is located. And we see no essential difference in so far as an interest in real property is involved, in an action to foreclose a mortgage, a lien created by contract, and in one to foreclose a specific statutory lien on real property. The appellant further contends, however, that his action is for a money judgment only and therefore is not analogous to an action for the foreclosure of a mortgage or an action to foreclose a lien. We cannot so hold in view of the allegations of the complaint. The balance claimed to be due is bottomed upon the alleged contract, but even so, the plaintiff is relying upon his lien for the payment thereof. He so pleads and in his prayer for relief he asks for the specific property upon which he holds his lien, to be sold to satisfy his judgment, costs, etc. Therefore, we think Mitchell County is the proper venue for the trial of this cause and that the defendants were entitled, as a matter of right, to have their motion for removal granted. Mortgage Co. v. Long, 205 N. C., 533, 172 S. E., 209; Councill v. Bailey, 154 N.. C., 54, 69 S. E., 760; Connor v. Dillard, 129 N. C., 50, 39 S. E., 641; Fraley v. March, 68 N. C., 160; cf. White v. Rankin, 206 N. C., 104, 173 S. E., 282. The judgment of the court below is Affirmed.