{
  "id": 8683802,
  "name": "DANIEL G. McMILLAN v. W. R. LOVE",
  "name_abbreviation": "McMillan v. Love",
  "decision_date": "1875-01",
  "docket_number": "",
  "first_page": "18",
  "last_page": "20",
  "citations": [
    {
      "type": "official",
      "cite": "72 N.C. 18"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "70 N. C. 538",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8698128
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/70/0538-01"
      ]
    },
    {
      "cite": "66 N. C. 481",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11277719
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/66/0481-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 277,
    "char_count": 4134,
    "ocr_confidence": 0.43,
    "pagerank": {
      "raw": 6.884805146940625e-08,
      "percentile": 0.4188597481938136
    },
    "sha256": "2e6f469f9eee39cbb9186b8a62662adc8b502a3232979998c6fc13900a0a7d8c",
    "simhash": "1:ecf63555ce67a049",
    "word_count": 725
  },
  "last_updated": "2023-07-14T15:28:46.712943+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DANIEL G. McMILLAN v. W. R. LOVE."
    ],
    "opinions": [
      {
        "text": "Peaeson, C. J.\nThis case does not come within the operation of \u201c the Landlord and Tenant act.\u201d McCombs v. Wallace, 66 N. C. 481, and-at this term.\nThe writ of restitution was a matter of course according to-the principle established by Perry v. Tupper, 70 N. C. 538.\nThe position, \u201cthere can be no restitution to Love for all of his rights passed by the assignment, in bankruptcy, and there can be no restitution to McRae, for he never had possession, is a mere play upon words. McRae, as assignee, in the forcible language of the books, stands in the shoes of Love; that is, he-takes his place, and becomes entitled to all of his rights in respect to property, as distinguished from his rights in respect to his person. These are not at all interfered with by the order to put McRae in possession of the land, in regard to which, this proceeding was instituted before a Justice of the Peace. The Justice of the Peace had no jurisdiction, his action was void, and the due administration of the law requires that the parties should be put in statu quo.'1'1 No error.\nPbb CuRiAM. J udgmeut affirmed.",
        "type": "majority",
        "author": "Peaeson, C. J."
      }
    ],
    "attorneys": [
      "B. Fuller, for appellant.",
      "Hinsdale and Guthrie, contra."
    ],
    "corrections": "",
    "head_matter": "DANIEL G. McMILLAN v. W. R. LOVE.\nSummary proceedings'before a Justice of tbe Peace, under the \u201cLand-lard and Tenant\u201d act, cannot be sustained against a mortgagor, who holds over after a sale of the mortgaged premises.\nThe- assignee in Bankruptcy of such mortgagor, is entitled to a writ of restitution, upon the dismissal of the plaintiff's proceedings.\n(MeCombs v. Wallace, 66 N. 0 Rep. 481;-at this term; and Perry v. Tupper, 70 N. 0. Rep. 538, cited and approved )\nS\u00fcmmaRy proceedin'os, in the nature of Ejectment, tried before hi? Honor, Judge Buxton, at the Spring Term, 1874, of Cumberland Superior Court.\nThe plaintiff originally instituted proceedings under the \u201cLandlord and Tenant\u201d Act, before a Justice of the Peace, which were brought by the appeal of the defendant, to the Superior Court.\nThe facts, as they appeared on the trial below, are substantially as follows:\nThe defendant and wife, on the 4th September, 1869, executed a mortgage-to one Baker, to secure the sum of $800, due six months thereafter, with a power of sale, in case the payment was not made. The note not being paid by defendants at maturity, Baker sold the mortgaged premises, and the plaintiff purchased the same. On the 16th day of May, 1870, Baker made a deed to plaintiff for the premises, then in possession of defendant.\nOn the 7th December, 1870, the plaintiff executed a deed to the said M. A. Baker, conveying to him a strip off of the land, 230 inches wide, the same being a lot in the town of Eayetteville. Baker testified, that he sold the land under the mortgage, at public sale to the plaintiff for $780, which sum the plaintiff paid him. It was a hona fide transaction ; the plaintiff paid his own money, and afterwards sold to him, Baker, the strip mentioned.\nIt was insisted for the defendant, that he was no such tenant as came under the provisions of the \u201c Landlord and Tenant \u201d act, and that the plaintiff could not evict him under proceedings brought in a Justice\u2019s Court. Of this opinion was his Honor, and so instructed the jury, who returned a verdict for the defendant. The defendant then moved for a writ of restitution, as the original defendant had been removed from possession by the judgment of the Justice of the Peace.\nThis motion the plaintiff resisted on two grounds:\n(1.) It was a matter discretionary with the Court, whether to grant the writ or not; and this was not a proper case for the exercise of such discretion.\n(2.) That the rights of W. R. Love, the original defendant, in the property, had passed from him, by his assignment in bankruptcy, so that he could not be restored to the possession. And as for the present defendant, D. G-. McRae, the assignee, he could not be restored to the possession, for he never had it \u2014the right of restitution being a personal right to the bankrupt.\nHis Honor, after argument, granted the writ in favor of Mc-Rae, the assignee, and rendered judgment against the plaintiff..\nFrom this judgment, plaintiff appealed.\nB. Fuller, for appellant.\nHinsdale and Guthrie, contra."
  },
  "file_name": "0018-01",
  "first_page_order": 28,
  "last_page_order": 30
}