Smith v. Barnhardt

Pee Cueiam:.

In an action pending in the Superior Court of Cabarrus County, at February Term, 1929, between the plaintiffs in this action and the defendant, Walter J. Barnhardt, there was a final judgment, and a decree that the lands described in a deed of trust executed by plaintiffs to secure their note held by the defendant, Walter J. Barn-hardt, be sold and that the proceeds of said sale be applied as therein directed. B. W. Blackwelder was appointed in said decree as commissioner to sell said lands. In accordance with certain provisions of said decree, the said B. W. Blackwelder, commissioner, on 1 January, 1931, advertised said lands for sale on 2 February, 1931. This action was begun on 31 January, 1931, to restrain the said commissioner from selling'said lands in accordance with the decree rendered at February Term, 1929, of the Superior Court of Cabarrus County.

A temporary restraining order signed on 2 February, 1931, was dissolved at the hearing on 2 February, 1931. Plaintiffs excepted to the judgment dissolving the temporary restraining order and appealed to this Court.

We find no error in the judgment dissolving the temporary restraining order. The fact that the defendant, W. J. Barnhardt is in possession of the lands described in the deed of trust, under a lease executed by the plaintiffs, is immaterial. No sale of said lands will be consummated until same has been confirmed by the Superior Court.

If plaintiffs are entitled to any relief on the facts alleged in their complaint, such relief may be had by an order in the action in which the decree for the sale of their lands was rendered. It cannot be had in this action. The judgment is Affirmed.