Hardy v. Carr

Smith, C. J. (after stating the case). The appellant sets up an equitable defence to the enforcement of the entire debt, because of a false and fraudulent representation as to the debtor’s exoneration from certain liabilities, which was an inducement to the giving of the note and formed a part of the consideration, and because, in consequence, it would be inequitable to compel him to pay its full amount. This averment raises an inquiry to the determination of which a finding by the jury was necessary, and an issue should [36] have been prepared and submitted, and it was wholly irregular in the Court to render a final judgment. Moreover, the judgmen is itself erroneous in declaring the land subject to a lien for the entire debt, or even for such part thereof as measures the price of the land. Land, by the statute, remains liable to be sold under execution for the purchase money, and cannot be exempted from this liability, but no lien is created, except as in other cases of docketed judgments. Constitution Art. X, § 2. It is error, therefore, to enter up judgment upon pleadings which raise an issue of fact without first having it settled by a verdict in a proper manner. We refer to but a single case in support of the rule: Dickerson v. Wilcoxon, 97 N. C., 309. It must be declared there is error in rendering the judgment, and it must be reversed. Error.