The progressive farmer. [volume] (Winston, N.C.) 1886-1904, 1895-04-09

mor's court. growing out Of the
fore .tion itself and executed for a
transSoratiop, dOnot come within the
eon4;ons of the statute referred to,
opeal1Soti Il the statute) evidently Tefers
anas existing debts, and was not in
TOP, +o embrace transactions OF this
there the debt grows out OF n
kll aoction itself and is for a present
POLARIZATION. We r supported in
Com~ooition by an opinion of this court
tnH January term, 1871, delivered by
as Justice Pearson in the case Of
CnTov vs.. Gillian, IS N. @. 40 con-
MO- the act of 1861, chapter 4, Sec
SD which act is substantially like
NO now under consideration. Toe
principle of construction is also
"aoanized in Reeves vs. Cole, 90 N. @.
az eIthough that case arose on the
.~ongtruction of the statute concerning
O0ricnItural supplies However, after
5ociding the point raised in that case,
CL;of Justice Smith, for the court,
S,-,bar said: "A similar method of
obstruction was pursued in ascertain
mo the meaning and giving effect to a
section in the act of September II, 1861,
ubich declares that "all deeds of
trust and mortgages hereafter made
nd judgments confessed to secure
dobta, shall be void as to credit
orsn unless providing for the pay
nont pro rata of all the debts and
liabilities of the maker. 1t was
held in NJ Kay VS.. GILLIAN, supra that
Notwithstanding the broad terms of
the act, its purpose was Ito take from
debtors the right to give preference to
some creditors to the exclusion of
others" and its operation was confined
10 pre- existing debts and did not in
cIude a loan contracted at the tim9 of
the execution of the deed and secured
BY it. We al therefore further Of the
opinion that the Act before US is in
tended only to prevent a preference in
favor of pre- existing creditors in the
cases specified in the Act itself. The
appellant will pay the costs of this
proceeding.
No. 1913, Farthing VS. Darlington.
Clark, j, concurriug in the result:
As the court holds that the que stion
of the construction of the Act is
properly raised by the record, l ex
press my concurrence in the opinion
that the Act only applies to assign
ments and other conveyances of like
nature as is stated in the title, and
forbids preferences being given by
such existing creditors, and that it has
no application to mortgages, crop
liens or other conveyRnces which may
be executed to secure a debt or loan
created at same TINA with the eXecu-
ton of such conveyance, nor where
the conveyance is executed to secure
advances thereafter to be made. Nc
KAY vs. Gillian, IS N. O., 80. But /
regret l cannot concur with the ma
jOFity of the court that the question is
properly before us in this proceeding
The submission of a controversy with
action under the Code, Section 567, Is
simply an inexpensive and prompt
proceeding to obtain the decision of
the court as to the rightsof the parties
in a matter where the facts r not
disputed 1t dispenses with summons
and pleadings, and al be submitted
to the Judge at Chambers as well as at
term. But it is not intended as q mode
Of prOpounding queries to the court
to settle abstract questions of law
when no judgment a be rendered
directing the defendant to do or not do
some particular act. Mcclellan vs..
Raw, I'm O., 1856; Little vs. TDorne,
SO N. @, 60; Miliken We Fox, "a N. c.,
1O7 1t is a substitute for a civil action,
and must state facts sufficient to con-
stltute accuse of action, and upon
which the court could have rendered a
Judgment if presented by complaint
n demurrer. The question here
sought to be decided could of course
be presented in this manner of pro-
ceedlpg, but only upon sufficient facts
stated. In the present case, the facts
agreed are simply that Darlington,
being indebted to the plaintiff executed
mortgage to his co-defendant to Sc
cure a loan made at the time of the
execution Of the mortgage, and the
plaintiff asks a decree that such mort
gage be declared void as to him. Sup
pose the plaintiff had been correct in
alleging that the mortgage was void,
does the bare fact that a debtor exc
cutes a void mortgage entitle any
creditor to obtain a decree that the
mortgage is void? How is he hurt by
II! The creditor, whose debt has not
Oeen reduced to judgment, has no lien
On any particular land OF the debtor.
ne mas no ground even to ask that the
mortgage be removed as a cloud on
ms Title. There Is no allegation or
agreement here that the defendant
harrington has included in this mort
gage, property above his homestead.
W3lch would other wise have been
5IOle TO executi~n for the plaintiffs
ueoI ana that the defendant has no