The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-07
Supreme Court Digest.
fReported by Jos. L. seawell.)


,MENZEL eft al, appellants v. HINTON.
From Pasquotank. Affirmed.
No time is prescribed by section 1922 OF
The Code within which mortgage IS re-
quired to execute power of sale.
The ten years statute of limitation (sec-
ton 1928 of The Code) does not apply to
the mere execution of a power of sale IA
a mortgage, which proceeding is held not
to be an action within the meaning OF
the statute.
The right to foreclose a mortgage under
power of sale contained therein Is not af-
fected by bar of action upon the debt
secured by the mortgage. Hutaff V.
Adrian, liz n. c.. 259 overruled in part.
SMITH ct al, appellants VS.. HUFFMAN ct
al From Burke. Affirmed.
Where parties defendant in proceed
ing to sell land for assets came in upon
notice after sale and consented to its
confirmation, irregularities in said pro-
ceeding are thereby cured.
A motion in the cause, and not new
action. is the remedy by which an ag-
grieved party should proceed to have A
Judgment set aside on the ground OF r.
regularity Chambers VS.. Penland, rs n
C. So: Morris vs. White SO n. c. 81.
"A purchaser dt d JuAISieal cei4N " IL ~
protected if the sale was authorized by 4
Judgment of a court having jurisdiction
of the subject matter and the person,
although the Judgment may be impeached
for irregularity Dickens VS.. Long, 112 n
c. 2f1.
STATE VS.. MEHAFFEY, appellant. From
Catawba Affirmed.
Upon the trial OF an indictment for as
Il. -, 1 In n
tent is an inference to be drawn by the
jury from defendants acts and is not a
question for the Judge.
The fact that the defendant desisted
after making a vigorous attempt to accom-
plish his purpose is not conclusive of alb
sence of intent to commit rape.
HAYES ct al appellant vs.. U. 9. FIRE
INSURANCE COMPANY. From Gull
ford. No error.
An insurance company by determining
the amount OF loss from fire does net
waive a condition in the policy that II
shall be void for conditional ownership OF
insured or his Misrepresentation as tC
his interest in the property.
Where in such case the complaint OF the
insured alleged an adjustment OF the
amount of the loss, but did not aliese
that such adjustment constituted WAIVER
of conditions in the policy, the defendant
insurance company was not required ia
negatively aver that such conduct wa
not a waiver.
MAYNARD vs.. LIFE INSURANCE COM
PANY of Virginia ct al, appellant
From Alamance. No error.
Where a creditor took out paid W
policy of insurance on the life OF IN
debtor Tor the benefit of the creditor, and
upon the death of the creditor before the
debtor, the policy was assigned by me
creditors administrator and upon Tic
death of the debtor the debtors admins
traitor demanded payment of the pollcy
oil The insurance company and forbade III
payment to the assignee, and upon sun
by the assignee against the insurance com
pany the company admitted the validity
or the pohcy and was permitted to pay
the amount into court and the debtor
administrator was substituted as party
defendant, and the insurance company
discharged from liability.
1t was held that tn. administrator OF
the debtor, having shoWnl no interest in
the policy and the validity Of the noI;cv
and its assignment having been aamitfed
by the insurance company the admin;u
traitor (who was really an interpleaaer,
could not object to the validity Of tbe