Carolina Cooling & Heating, Inc. v. Blackburn

Higgins, J. The plaintiffs’ allegations by verified complaint are not denied by answer. The challenge is by motion to dissolve the restraining order. The procedure on the part of the defendants is equivalent to a demurrer based on the legal grounds stated in the motion, supplemented by the affidavits. In substance the allegations in the complaints are that the note for $50,000.00 secured by the deed of trust has been paid in full. Consequently, the payment of this note extinguishes the power of the trustee to sell the land, and entitles the mortgagor to cancellation. The payment of the note in full divests the trustee of all authority to foreclose. Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785; Barbee v. Edwards, 238 N.C. 215, 77 S. E. 2d 646; Fleming v. Land Bank, 215 N.C. 414, 2 S.E. 2d 3; Crook v. Warren, 212 N.C. 93, 192 S.E. 684. In Pinnix v. Casualty Company, 214 N.C. 760, 200 S.E. 874, this Court said: “The right of a junior mortgagee to resort to injunction to stay a foreclosure proceeding under a senior mortgage having a lien upon the same land, until a bona fide controversy as to the amount due on the senior mortgage has been ascertained, is not questioned.” Whether the junior lien is by another mortgage, deed of trust, or by docketed judgment, would appear to be without significance. The plaintiffs’ complaints allege sufficient facts to entitle them to restrain the proposed sale and give them the opportunity to establish their allegations that the $50,000.00 note has been paid. The allegations furnish solid foundation upon which to base an order continuing the restraint until the defendants at least place them at issue by answer. “It is generally proper, when the parties are at issue concerning the legal or equitable right, to. grant an interlocutory injunction to preserve the right in statu quo until the determination of the controversy, and especially is this the rule when . . . dissolution ... or the refusal . . . will virtually decide the case upon its merits and deprive the plaintiff of all . . . relief, even though he should be afterwards able to show ever so good a case.” Delmar Studios v. Goldston, 249 N.C. 117, 105 S.E. 2d 277; Roberts v. Cameron, 245 N.C. 373, 95 S.E. 2d 899. The record now before us discloses that the Superior Court committed error in determining that the restraining order should be dis [158] solved. The cause is remanded with direction to continue the restraint until the cause may be heard on the merits. The defendants will be entitled to a reasonable time in which to file answer. Reversed. Moore, J., not sitting.