The Caucasian. (Clinton, N.C.) 188?-1913, 1895-04-18


growing out of the transaction itself
and executed for a present considera-
tion, do no; come Wit hin the operations
Of the statute referred 10, and that II ,
tthe statute evidently refers TO pre-
existing debts. and Was not intended /
to embrace transactions af this kind i
where the debt grows oui OF the trans !
action Itself and j. for present con- |
sideration. We are supported In this /
petition by an opinion of this court nj
its January term. 1871, delivered by |
Chief Justice Pearson in the case oi
Mckay v. Gillian. t., y. 4. $50 con |
strung the act of 1851. chapter l
section l.. which 81 il substantially |
like he one now und"r considerai ion. |
The same principle-of construction l.
also recognized in Reeves W. Cole. ~
\. 4. ~. alt hongh that ease arose on
The construction OF the statute concern
ing agricultural supplies. However
after deciding he point raised in that
ease, Chief Justice Smith, for the court
further said; A similar method of con-
struction was pursued in a>certalniug
the meaning and giving effect To a sec
ton in the act oil September II, 1851.
which declares that "all deeds of trust
and mort cages hereafter made and iudg
~
void As To creditors" unless prov id-d for
the payment pro rata OF all the debts
and liabilities of the maker. IL was
held in Mckay ". 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 9TH
erS, and its operation was confined To
| pre-eXisting debts and did not include
| a loan contract at the time of the exc
| cution OF the deed and security by 1T"
We are therefore further of the opinion
| that the Act before us is intended 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., concurring' in the result ::
AS. the court holds that the question
of the construction Of the act is prop
erly raised by the record, express my
concurrence in the opinion that the
act only applies to assignments and
other conyeyances of like nature" as is
stated in the title, and forbids prefer
ences being given by such to existing
creditors, and that it had no applica-
ton to mortgages, crop liens or other
secure a debt or loan created at the
same time with the execution of such
conveyance, nor where the conveyance
is executed to secure advances there
after to be made. Mckay VS.. Gillian
90, n. c., $50. But | regret | cannot
concur with the ma Ority of the court
that the question is properly before Us
in this proceeding. The submission OF
a controversy without action" under
the Code, section 567, is simply an in
expensive and prompt proceeding t.
obtain the decision of the court as (,
, the rights of the parties in a matter
where the facts are not disputed. II
: dispenses with the summons anG
pleadings, and can be submitted to the
. Judge at chambers as well As at term
E ! But it is not intended as mode of pro-
? pounding queries to the court to settl.
abstract questions of law when NJ
{: judgment can be rendered directing
the defendant to do or not to do som.
particular act. Mckethan VS.. Ray, q
n. c., 1865; Little VS.. ThOrne, 93 \. G.
50; Milliken VS.. Fox, 81 y. c., lO7. Il
l is a substitute for a civil action, an,
e must state facts sufficient to constitute
cause of action, and upon which tn,
! court could have rendered a judgment
=.
, rer. The question here sought to b,
p decided could of course be presented
t in this manner of proceeding, but onl,
: upon sufficient facts stated. In tn,
present case, the facts agreed ar,
simply that Darlington, being in
debted to the plaintiff executed 4;
, mortgage to his cO-defendant to Sc
o cure loan made at the time of the
e execution of the mort age, and tn,
: plaintiff asks a decree that such mort
S gage be declared void as to him. Sup
e pose the plaintiff had been correct il
alleging that the mortgage was void
does the bare fact that debtor exc
cutes void mortgage entitle an!
f creditor to obtain decree that tn,
e mortgage is void? How is he hurt b,
: it? The creditor whose debt has moi
been reduced to judgment has no lieI
on any particular land of the debtor
: He has no ground even to ask that tn.
mortgage be removed as cloud on hi.
r title. There is no allegation or agree
A ment here that the defendant Caring
ton has included in this mortgage
property above his homestead, which
would otherwise have been liable to eX
ecutiOn for the plaintiffs debt and that
the defendant has no other property t.
S ayerred that the plaintiff has judgment
: and execution, and if he had, no rea.
son is shown why he could not sci
under it and buy the property EN-
braced in the alleged mortgage, treat.
ing it as void. 1t does not appear ever
that the mortgage has been registered
1t is true the affidavit sets out that thi:
is a bona fide action, but it does moi
appear that the plaintiff has suffered
or will suffer any detriment, nor thai
/, the courts can render him any aid. In.
1 deed on the facts agreed there is M
Judgment that the court could render
unless it Is that of passing upon the
abstract question of the construction o.
p the act. Nor can | concur that the
r response of the court 114 n. G. 293) tt
e the inquiry of the Governor as to tn,
J tenure of judicial Office is a precedent
in this case which concerns merely tn,
;, rights of parties litigant in civil &C
2 ton of a private nature.
3 No. 1913, Farthing VS.. Darlington: con
$ curing opinion of Furchees,J.
4 Concurring in the opinion of he cOur
delivered by Justice Montgomery,
o regret that there is any reason VIII,
! any member of the court should fee
t that he was not authorized in this pro
: ceeding to give his opinion as to tn.
0 proper construction of the act of Marcel
j. 18th, 1895.
" AS we are bound to see from the pro
o ceeding before us, (if we close our eye
to other sources of information
4 it involves matter of great interes
' to the business of the State.
: The main question, and the one in
tended to be presented for our con
sideratiOn is the construction of tn,
act of March 18th, 1895, and four mem
bers of the court have given their opin
ion, constituting this act to apply Onl!
to pre-existing debts, at the time o
making the mortgage or other security
- and not to debts made cOntemporane
: Gus with and agreed at the time o
S their making, to be thus secured. Tn,
other member of the court, for reason
: | xxhiah Il