Baruch v. . Long , 117 N.C. 509 ( 1895 )

The defendants moved that the action be removed for trial to Richmond court for the following reasons:

"1. That the said action is for the determination of a right of interest in real property situated in Richmond County.

"2. That the action is for the recovery of personal property situated in Richmond County."

The motion was refused, and defendants appealed. This is a creditors' bill brought in Mecklenburg County to set aside, because fraudulent and void as to creditors, the transfer of certain articles of personal property and certain judgments suffered by the defendants Long, who resided in Richmond County, said personalty being also in Richmond County and the judgments being docketed in the Superior Court thereof; also for the appointment of a receiver and an injunction. The defendants move to remove to Richmond County upon the grounds (1) that the said action is for the determination of a right or interest in real property situated in Richmond County; (2) that the action is for the recovery of personal property situated in Richmond County.

Neither ground can be sustained. The docketed judgments (511) confer no "estate or interest" in real estate within the meaning of The Code, section 190 (1), but merely the right to subject the realty to the payment of the judgments by sale of the same under execution. It is a lien, taking priority according to the date of docketing. It is true it is said in Gambrill v. Wilcox, 111 N.C. 42: "The lien of a docketed judgment is in the nature of a statutory mortgage," and so it is, but it is not said that a judgment when docketed conveys an interest or estate in realty, as a conveyance by mortgage does. Springer v.Colwell, 116 N.C. 520, merely holds that a proceeding on appeal from an allotment of homestead would be an action "for the determination of an interest or right in real estate" and properly triable in the county where such land lies.

Nor is this an action to recover personalty. The receiver, if appointed, must bring such action in the county where the personalty is located, since the act of 1889, ch. 219, amending The Code, sec. 190 (4). The judge in his discretion might remove the action if the convenience of witnesses or the ends of justice would be promoted by the change [The Code, sec. 195 (2)], or if satisfied that a fair trial cannot be had in the county where the action is pending (The Code, secs. 196, 197), but he cannot be required to remove the cause upon the grounds stated. The objection that it does not appear that the plaintiffs reside in Mecklenburg County comes too late when made for the first time in this Court. Devereux v. Devereux, 81 N.C. 12. Even if it had affirmatively appeared that the plaintiffs did not reside in Mecklenburg County, the action might be tried in that county unless a motion to remove on that ground had been made in apt time in the court below. The code, sec. 195; Cloman v. Staton, 78 N.C. 235; Leach v. R. R.,65 N.C. 486; Clark's Code (2 Ed.), p. 112.

No error.

Cited: Hines v. Vann, 118 N.C. 7; Lucas v. R. R., 121 N.C. 508;Gammon v. Johnson, 126 N.C. 66; Connor v. Dillard, 129 N.C. 51; Normanv. Hallsey, 132 N.C. 9; Eames v. Armstrong, 136 N.C. 394; Jones v.Williams, 155 N.C. 193; Brown v. Harding, 170 N.C. 266; Craven v.Munger, ib., 425; Ludwick v. Mining Co., 171 N.C. 62; Wofford v. Hampton,173 N.C. 688.

(512)