# Barnaby v. Boardman

> Supreme Court of North Carolina · June 4, 1985 · 313 N.C. 565

URL: https://www.frixlaw.com/law-library/cases/9591188

## Case

- **Full name:** NEIL BARNABY and MARINA VILLAGE, INC. v. ELBRIDGE H. BOARDMAN and Wife, RUTH R. BOARDMAN and O. L. GRAHAM, Trustee
- **Court:** Supreme Court of North Carolina
- **Decided:** June 4, 1985
- **Citations:** 313 N.C. 565; 330 S.E.2d 600; 1985 N.C. LEXIS 1560
- **Precedential status:** Published
- **Opinion:** Concurrence by Meyer
- **Judges:** Mitchell, Meyer, Vaughn
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9591188

## How later opinions describe it (automated extraction)

- holding that “the holder of a promissory note given by a buyer to a seller for the purchase of land and secured by a deed of trust embracing such land may [not] release his security and then sue on the note”

## Opinion text

Justice Meyer
concurring in result.
I concur only in the result reached by the majority. I deem it unnecessary and unwise for the majority simply to reach out and reject the reasoning of (i.e., virtually overrule) Brown v. Kirkpatrick, 217 N.C. 486 , 8 S.E. 2d 601 (1940), when the issue upon which that case was decided is not even remotely before us *572 in this case. Brown dealt only with a note secured by a second purchase-money deed of trust left unpaid and unsecured because the property had been sold under a first deed of trust having priority. That situation is clearly distinguishable from the factual situation before this Court in this case. The Brown issue was not raised by this appeal and thus was neither briefed nor argued by the parties. The majority’s boldness in virtually overruling Brown in this situation is somewhat surprising since, ordinarily, the bench and bar would consider any comment on the Brown issue in this case to be obiter dictum.
It is also appropriate, once again, to point out that the application of the anti-deficiency judgment statute is relatively rare in North Carolina because seller-financing of home purchases is itself relatively rare. Usually sellers need the equity from the sale of their home to acquire a new home for themselves. Most home purchase-money financing is done not by the vendor but by savings and loan institutions, banks, mortgage companies, and insurance companies, to which the anti-deficiency judgment statute does not apply. This being so, the ostensible purpose of the anti-deficiency judgment statute is not really being served. The application of the statute today is not primarily to unwary homeowners, but to sophisticated developers and land speculators who purchase with at least partial owner financing. Perhaps the statute has outlived its usefulness — at least to the extent that it is not applicable to the third-party thrift institutions, mortgage companies, and insurance companies, which provide the great bulk of home financing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9591188. Public record. Not legal advice.