#### MADELINE S. WHITE v. R. G. RANKIN and A. E. WOLTZ.

(Filed 28 February, 1934.)

Venue A a — Action hold not to involve interest in realty, and motion for removal as a matter of right was properly refused.

An action against the endorser of a negotiable note secured by a deed of trust and against the transferee of the equity of redemption on his debt assumption contract in his deed, to recover from each of the parties on their liability on the note is not an action involving an interest in real estate, plaintiff not being entitled to a decree of foreclosure on the facts alleged, neither the trustee nor the trustor being parties to the action, and defendants’ motion aptly made, O. S., 913(a), for removal of the action as a matter of right to the county in which the land is situate was properly refused. C. S., 463(1).

Appeal by defendants from Shaw, Emergency Judge, at April Term, 1933, of Guilford.

Affirmed.

From an order denying their motion for the removal of this action from the Superior Court of Guilford County to the Superior Court of Gaston County for trial, the defendants appealed to the Supreme Court.

York & Boyd for plaintiff.

Geo. B. Mason for defendants.

Connor, J.

This action was begun and is now pending in the Superior Court of Guilford County. After the complaint was filed, and before the time for answering had expired, the defendants moved before the clerk of the Superior Court of Guilford County, in writing (C. S., 913(a), that the action be removed from said court to the Superior Court of Gaston County for trial on the ground that it appears from the allegations of the complaint that the action is for the determination of an estate or interest in land situate in Gaston County. C. S., 463(1). The motion was denied by the clerk, and the defendants appealed to the judge of the Superior Court of Guilford County, who heard the motion de novo, as provided by statute. C. S., 913(a). The judge was of opinion that the action, as appears from the allegations of the complaint, is in personam, and does not involve the title to land situate in Gaston County, nor any interest therein, and accordingly denied the motion.

The only question presented by this appeal is whether there was error in the order of the judge denying defendants’ motion, which was made in apt time, and as a matter of right. The answer to this question must be determined by a consideration of the allegations of the complaint. *105Tbe facts alleged in tbe complaint as' constituting tbe cause of action on wbicb plaintiff seeks to recover of tbe defendants are as follows:

Tbe plaintiff is a resident of Guilford County. Tbe defendants are residents of Gaston County. On 2 January, 1928, tbe Rankin-Lineberger Realty Company, a corporation, executed a note for $5,000, payable to tbe order of Leonard White, and due five years after its date. At tbe date of its execution, and prior to its delivery, tbe defendant, R. G. Rankin, endorsed tbe note by writing bis name across its back. Thereafter, on 7 February, 1929, tbe payee of tbe note, Leonard White, endorsed and transferred tbe. note to tbe plaintiff. She is now tbe bolder and owner of tbe note.

Tbe debt sued on was secured by a deed of trust on land situate in Gaston County. This deed of trust was executed by tbe Rankin-Line-berger Realty Company, tbe maker of tbe note, and conveyed tbe land described therein to R. G. Cherry, trustee. Tbe deed of trust was duly recorded in Gaston County on 24 January, 1928. Thereafter by deed dated 20 November, 1928, tbe Rankin-Lineberger Realty Company conveyed tbe land described in tbe deed of trust to tbe defendant, A. E. Woltz, who expressly assumed tbe payment of tbe note secured by tbe deed of trust, by a covenant contained in tbe deed by which tbe land was conveyed to him.

Tbe note sued on is now due and unpaid.

Tbe plaintiff demands judgment that she recover of the defendant, R. G. Rankin, by reason of bis liability as endorser, and of tbe defendant, A. E. Woltz, by reason of bis covenant to pay said note, tbe sum of $5,000 with interest and costs.

This action does not involve any estate or interest in the land situate in Gaston County and described 'in tbe deed of trust referred to in tbe complaint. On tbe facts alleged in tbe complaint, plaintiff is entitled to recover a personal judgment against each of tbe defendants for tbe amount due on tbe note. Rouse v. Wooten, 140 N. C., 557, 53 S. E., 430; Brown v. Turner, 202 N. C., 227, 162 S. E., 608. She is not entitled on these facts to a foreclosure of tbe deed of trust by judgment or decree in this action. Neither tbe grantor nor tbe trustee is a party to tbe action. For this reason, Mortgage Co. v. Long, 205 N. C., 533, is not applicable to this case.

There is no error in tbe order denying defendants’ motion for removal of tbe action. Tbe order is

Affirmed.