Barnes v. Horney

This is the second suit which plaintiffs have instituted against defendant on account of Parkers failure to insert in plaintiffs note a recital that it was given for the balance of purchase money of real estate. It is also plaintiffs second appeal from a judgment of nonsuit. The first action, instituted prior to the time plaintiffs liability to Lucas had been established, was dismissed because prematurely brought. Childers v. Parkers, Inc., 259 N.C. 237, 130 S.E.2d 323. Plaintiffs liability to Lucas now having been established and discharged, their exception to the judgment of nonsuit from which they presently appeal presents this question: Did G.S. 45-21.38, as it was worded on 23 March 1959, apply to a note and deed of trust securing a third party who lent the vendee (his debtor) the purchase price of the land described in the deed of trust? At that time, exclusive of the words in parenthesis, G.S. 45-21.38 provided in pertinent part: