Summary proceedings before a justice of the Peace, under the "Landlord and Tenant" act, cannot be sustained against a mortgagor, who holds over after a sale of the mortgaged premises.
The assignee in Bankruptcy of such mortgagor, is entitled to a writ of restitution, upon the dismissal of the plaintiff's proceedings.
( McCombs v. Wallace, 66 N.C. 481; — at this term; and Perry v. Tupper, 70 N.C. 538, cited and approved)
PEARSON, C. J.
This case does not come within the operation of "the Landlord and Tenant act." McCombs v. Wallace, 66 N.C. 481, and — at this term.
The writ of restitution was a matter of course according to the principle established by Perry v. Tupper, 70 N.C. 538.
The position, "there 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." No error.
PER CURIAM. Judgment affirmed.