#### HENRICO LUMBER COMPANY v. DARE LUMBER COMPANY.

(Filed 15 September, 1920.)

1. Actions — Venue—Parties—Interest in Lands — Cities—Corporations— Nonresidents.

A suit to set aside a deed of trust for lands, and to establish, a prior lien thereon in plaintiff’s favor, involves an estate or interest therein, within the intent and meaning of our statute, Rev., 419, requiring that the venue of such action shall be in "the county wherein the land is situated, and where both plaintiff and defendant are corporations, nonresident of the State, an action brought in a different county from the situs of the *13property, wherein neither has property, nor conduct its business, the case falls within the intent and meaning of Rev., 423 and 424; and upon a proper motion aptly made, is removable to the Superior Court of the County wherein the land is situated, and the cause of action arose.

3. Removal of Causes — Transfer of Causes — Courts—^-Jurisdiction—Motions- — New Parties.

Where a cause is removable, for improper venue, from the county in which it has been brought, and new parties defendant are made at their own request, such new parties are not prejudiced by the delay of the original defendant to take timely steps to remove the cause to the proper county-, when they act promptly and within the time allowed by law.

Civil actioN, beard before Calvert, J., on a motion to remove tbe same to tbe county of Dabe for trial, wbicb was granted, and tbe removal ordered. Plaintiff excepted, and appealed to tbis Court.

Tbe facts are these: Tbe plaintiff sued to recover damages for tbe breach of a contract by tbe defendant to sell and deliver to it a certain quantity of pulpwood, for tbe price of $120,102.10, and also to set aside bonds and a deed of trust on lands for fraud. Tbe Dare Lumber Company, a corporation, issued its 'bonds to tbe amount of $6,000,000, and secured tbe payment of tbe same by executing a deed of trust to tbe Commercial Trust Company on its lands in Dare and Pasquotank counties. Tbe contract for tbe sale and delivery of tbe pulpwood was authorized and approved by tbe Metropolitan Trust Company, wbicb corporation was tbe owner of all tbe stocks and bonds of tbe Dare Lumber Company, tbe approval of that company being based upon a valid consideration, that is, tbe benefit and advantage wbicb would accrue to it from tbe pulpwood contract. Tbe Metropolitan Trust Company is now tbe owner and bolder of tbe bonds of tbe Dare Lumber Company, secured by tbe deed of trust, wbicb are alleged to be fraudulent as to tbe creditors of tbe said company. Tbe latter company was tbe original defendant in tbe action, wbicb was brought in Beaufort County. Tbe other defendants were afterwards made parties, as defendants, upon their owmrequest, and moved that tbe venue of tbe action be changed to Dare County, because tbe cause of action arose there, and tbe lands described in tbe deed of trust are situated there, all of tbe parties being nonresidents of tbis State. A sale of tbe lands by tbe trustee, under tbe power contained in tbe deed of trust, was enjoined and other orders made, wbicb, though, it is not material to consider at this stage of tbe proceedings.

Tbe Metropolitan Life Insurance Company having become tbe owner of tbe stocks and bonds of tbe Dare Lumber Company, tbe Metropolitan Trust Company bad been substituted as trustee in tbe deed of trust for tbe Commercial Trust Company. Tbe time for answering expired on 13 July, 1920, and tbe motion to remove was filed 12 July, 1920.

*14 Small, MacLean, Bragaw & Rodman for plaintiff.

Frank Swing, P. W. McMullan, and W. A. Worth for defendant.

Walkee, J.,

after stating tbe foregoing material facts: Tbe right to bave tbe place of trial changed from Beaufort County to Dare County would seem to be clear upon tbe facts. Why tbe venue of tbe action was laid in Beaufort County does not appear. It manifestly was not tbe proper county, as none of tbe parties resided therein; tbe cause of action did not arise in that county; nor was any of tbe land to be affected by tbe judgment, and described in tbe deed of trust, situated therein; nor was tbe business of tbe companies, or any of them, usually done in that county. But Dare County answered all these requirements. Rev., 419, 423, 424. Tbe plaintiff, as we bave remarked, is a Virginia corporation, and tbe defendants are New York corporations, and those sections fix tbe venue, which does not include Beaufort County. Tbe law provides that actions for tbe following causes must be tried in tbe county where tbe subject of tbe action, or some part thereof, is situated, subject to tbe power' of tbe court to change tbe place of trial, in tbe following cases:

1. For tbe recovery of real property, or of an estate or interest therein, or for tbe determination in any form of such right or interest, and for injuries to real property.

2. For tbe foreclosure of a mortgage on real property, etc. Rev., 419.

An action against a corporation created by or under tbe laws of any other State, government, or country may be brought in tbe Superior Court of any county in which tbe cause of action arose, or in which it' usually did business, or in which it has property, or in which tbe plaintiffs, or either of them, shall reside. Rev., 423. This action was brought for tbe purpose of setting aside tbe deed of trust, and obtaining a lien thereon superior and prior thereto. It, therefore, comes within tbe operation of Rev., 419 (not to mention tbe other sections which are applicable), because tbe plaintiff seeks tbe determination, in some form, of an estate or interest in real property. We held in Wofford v. Hampton, 173 N. C., 686, that a creditors’ bill for setting aside an alleged fraudulent deed of a debtor to bis wife was triable only in tbe county where tbe land, or some part thereof, is situated. Tbe object of this action is to establish a claim and to annul, for fraud, a deed of trust on lands in Dare County, where tbe cause of action arose.

There is a suggestion that tbe motion to remove tbe case for trial to Dare County was not made within tbe time prescribed by tbe statute, but this appears to us to be an erroneous view of tbe case. It is certain that tbe insurance company and tbe trust company made their application for removal in time, and, even if tbe other defendant was tardy, it could not, by its inaction, prejudice, much less sacrifice, their right of *15removal. These two defendants acted promptly after they were allowed to become parties. They would have been mere interlopers bad they taken action to remove before tbeir entrance into tbe case. A similar question was before tbe Court many years ago in Knowis v. Baker, 4 N. C. (Anno. Ed.), p. 196, where Judge Cameron said: “No neglect or delay in making tbe application can be fairly imputed to tbe defendant; for although tbe suit has been pending for several terms, yet till be became interested in it, be bad no authority to interfere in it; and tbe application for a removal is made at tbe same term at which be is made a party to tbe suit.” Besides, tbe defendants could not judicially have known what was tbe cause of action, and that it was removable to tbe proper venue, until tbe complaint was filed. As we have said, if tbe Dare Lumber Company was too late, or bad waived its right, it did not deprive tbe other defendants of theirs.-

After providing for tbe venue of actions concerning real property (Rev., 419), tbe statute declares that “in all other cases, tbe action shall be tried where tbe plaintiffs or defendants, or any of them, reside.” Rev., 424. None of tbe parties reside in Beaufort County, as they are all nonresidents.

There was no error in the order.

Affirmed.