Kilpatrick v. . Harris , 62 N.C. 222 ( 1867 )

The complainants set forth that the defendant had obtained and was enforcing against them a judgment at law upon a bond given for part of the purchase money of a tract of land which he had covenanted to convey to them "in a few days, at most within a reasonable time"; that they had demanded title to be made, and the defendant upon one pretext or another had refused to comply with his contract; that they (223) were informed and believed that he could not make an indefeasible title, and thereupon prayed for a specific performance, and in the meantime for an injunction, and for other relief.

Upon this they had obtained at chambers a preliminary injunction.

The defendant, after giving some account of his reasons for not complying before, tendered to the complainants a deed for the land bargained to them, averring that he had good and indefeasible title thereto. The deed was filed with the answer. Upon the coming in of this answer his Honor, upon motion, ordered the injunction to be dissolved, and the complainants appealed. The main allegation upon which the plaintiffs base their claim for injunctive relief is, that the defendant had not made and is not able to make to them a good title for the real estate mentioned in the bill. This allegation as to the ability to make a good title, is positively denied by the answer, and the defendant therein sets forth an abstract of his title, avers it to be a good and indefeasible one, and tenders what he says is a sufficient deed, to be delivered upon the payment of the purchase money. His Honor in the court below, deeming this a positive and unequivocal denial of the ground of the plaintiff's equity, on motion of the defendant's counsel, dissolved the injunction which had been granted upon the filing of the bill. In this we think his Honor erred, for that he ought to have continued the injunction, not until the hearing but until there could be a reference to the Master and a report from him as to the sufficiency of the defendant's title. That such is the English practice is shown by Adams Equity, 84. A similar practice prevails in this State, as appears from Gentry v. (224)Hamilton, 38 N.C. 376, in which the court says: "It is a general rule in a suit for specific performance in which the single question is whether the vendor can make a good title, that the court at the present day directs a reference to the Master to inquire into the title, and this even without the consent of the other party. Brook v. Clarke, 1 Swan., 551;Shelton's case, 1 Ves. and B., 519. Atkinson, on ``Title,' 226, says that either party to the suit is, as a matter of right, entitled to have a reference upon the title."

The interlocutory order dissolving the injunction must be reversed, and the case remanded for further proceedings in the court below.

PER CURIAM. Reversed.

Cited: Leach v. Johnson, 114 N.C. 88.