The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1895-04-16

Jd0go avery was MOI so particular
about the manner of bringing suit to
determine a question at that time
EDITOR
JUDGE AvERYS DISSENTING OPINION.
No. 1913, Farthing VS.. Darlington.
Avery, j., dissenting: The statute
Code section 500 was enacted in order
(said Pearson, @. J. in Mcclellan vs.
Ray, II N. @. 100 ito dispense with
the formality of summons, complaint
and answer" It would manifestly lead
to absurdity to hold that the ''contro-
versy without action" was intended to
include any other than a legal contro-
versy, if the statute did not relieve us
of discussing the general principle by
declaring in plain terms that it must
be between ''partiCs to a question in
difference, which might be the subject
| of a civil action" 1t follows necessarily
that before the court can consider such
q proceeding it must be satisfied from
the statement that a u OF action
exists, and this can only appear when
from the sworn statement, however
informally or Enthusiastically drawn, the
court can gather facts sufficient to
constitute 1.-The subject OF civI action"
Hence it has been held that where the
ease containing the facts" does not
show that the court has Jurisdiction,
the proposed controversy must be dis
missed Little VS.. Thorne, SO n. @. SO
Following numberless p~recedenta, be-
ginning with Tucker VS.. Baker, Sc N.
@. 1, this court has held during the
present term in the case of Webb vE.
Hicks. Justice Furches delivering the
opining of the court, that where facts
cannot be gathered from the whole
complaint, that would, If true, entitle
a plaintiff to recover, the action must
be dismissed. Lessiter VS.. Roper, ia
N. Q. II. In the s. at bar, it is set
forth in the sworn statement that
Hiram Jones, one of the parties, Dor
rowed one hundred dollars from
another party, w. #. Darlington, on
the 23d of March 1895.
The mortgage, with the probate and
certificate of registration is let forth in
full, and then follows the portion of
the affidavit upon which the status of
the case in court depends, which is as
follows:
That at the time of and before the
execution of said mortgage, said Hiram
Jones was indebted, by note, to g. Q.
Farthing. above named, in the sum of
One Hundred Dollars, and said Earth
ing contends that said mortgage is
void, for the reason that at the date of
its x Gcution he was a creditor of said
Jones, as above stated. Whereas, said
W. T. Darlington and Hiram Jones
contend that neither the letter nor the
spirit of the new anti preference law
embraces a case of this kind, in which
one person, however much indebted at
the time, creates a new debt and seeks
70 .0o11ra thu h. -o1-&~ooo $1,000
deed or other security. And so desir
the decision of the court upon the state
of facts.
w. T. CARRINGTcN,
HIRAM JONES,
@ G.. FARTHING
w. 7. Darlington and G. G. Earth
ing, being duly sworn, s ate that this
controversy Is real, and the proceed
ings in good faith, to determine the
rights of the parties.
w. 7. DARLINGTON.
Sworn to and subscribed before me
this April 1, 1895.
Witness my hand and notarial seal.
CHAs K FAUCETTE,
Notary Public.
The Act of March 18th, 1895, provides
that "All conditional sales, mortgages
or deeds in trust, which are executed
to secure any debt, obligation, note or
bond which gives preference to any
creditor of the maker, shall be abso-
lutely void as to eCiSting CreditOr8."
The Statute of 18th Elizabeth Code,
Sec. 1545) declared all conveyances exc
cuted Ito delay, hinder and defraud
creditors and others of their just and
lawful actions, etc lonly as to that
person, his heire, etc) to b8%ltterly
void and of no effect" Before the
enactment of that statute it was neces-
sary to invoke the aid of court of
equity to have a deed declared void
tor fraud, and, where by that or any
other statute deeds are pronounced
void as against creditors, in order to
secure a formal declaration of their in
validity the moving party must ask
relief that would have been admins
tered formerly solely in q court of
equity.
It does not appear that the creditor
Farthing has sued upon the note due
him, OF that if he had obtained judg,
ment and issued execution thereon he
could not have realized his debt by the
sale OF other property. Unless the
creditor has the right, upon the state
OF facts presented, to demand a formal
declaration Of the court that the mort
gage is void, no cause of action is
stated, upon which he can demand any
Judgment whatever. Switzerland VS..
Harper, SO N. c., 200. Farthing has
shown no shadow of a claim to either
the specific personal property or the
land covered by the mortgage to Car
rngton, and there is not the slightest
ground therefore for invoking the aid
of the court to remove a cloud from
property to which he has shown no ap
parent right or title. Browning VS..
Lavender, 1O4 N. c., 81; Peacock vs..
Stott, Ibid 1874. "a cause of action is