Wright v. . Grist , 45 N.C. 203 ( 1853 )

The defendants answered severally.

The defendant James R. Grist admitted the lease by the plaintiff, but alleges that of the seventeen thousand acres said to be included within the limits specified in that lease, so much is covered by patents older than that of the plaintiff that he has not been able to procure more than five hundred (205) acres and thirty-nine thousand boxes of that assigned by the lease and that by this breach of faith on the part of the complainant he has been seriously damaged. The answer denies that the defendant ever, either directly or indirectly, made any tar upon the premises leased, or that he used the lightwood; it denies in the same manner the charge of having taken hoop poles or barrel timber for the saving of turpentine not made upon the lands leased, and avers that he has promptly paid to the plaintiff at the end of every year all the rent that was due, and that he owes her nothing. It further insists that the defendant James is and always has been in good credit, and amply able to make satisfaction to the plaintiff for any wrong he may have done to her; and submits that the plaintiff's claim, as disclosed by the bill, is one properly cognizable in the Courts of law.

The defendant Benjamin makes the same admissions that are contained in the answer of James. He admits that he was the agent of James, and denies his using the lightwood and timber for barrels and poles for hoops as charged by the plaintiff. He also admits that he has instituted a suit of trespass, but alleges that the land to which it has relation, although within the limits specified in the lease, is part of a tract patented previously to that of the plaintiff, and leased to him by the owner. He asserts that he has always been able to satisfy the plaintiff for any damage she may have sustained from him, and claims that the plaintiff's action should have been preferred in a Court of law.

After these answers had come in, a motion was made before his Honor Judge Dick to dissolve the injunction. The motion was disallowed, and the injunction was continued to the hearing. From this order the defendants appealed to this Court. The distinction between the special injunction to stay waste, and the common injunction to enjoin a judgment at law, and the principles upon which our practice is governed in relation to both, are so fully discussed and explained in (206) Capehart v. Mhoon, ante 30, and Lloyd v. Heath, ante 39, decided, at the last term, and in the cases therein referred to, that it would be useless to advert to them here. It is well settled, that on a motion to dissolve an injunction to stay waste, the bill may be read as an affidavit to contradict the answer, and if upon taking the whole together the question is left in doubt, the injunction will be continued until the hearing. Upon that practice this case must be decided; and the result is, that the injunction must be dissolved. The answer plainly and expressly denies every material allegation of the bill, and that without any equivocation or evasion, while the bill does not state the facts upon which she founds her claim to relief as coming within her own knowledge, but only that she has been informed of, and believes them. How and from whom, she got her information does not appear. It may have been a mere rumor. Upon which then, is most reliance to be placed; such a statement, or the apparently frank and full denial of the defendants in reference to the facts within their own knowledge? We think, a jury empanelled to try such an issue, could not hesitate to find the facts in favor of the defendants, and we, as the triers upon the motion to dissolve, must find the same way. The other ground upon which it is sought to continue the injunction, to wit, that the defendant, Benjamin, has brought an action of trespass against the plaintiff for entering upon her own land, is untenable. The lease granted to the defendant, James R. Grist, sets forth, that she wished to acquire the title to them. We cannot therefore, see the force of the argument that the defendants were constituted her trustees, and as such were not at liberty to buy such lands. If either of them has taken possession of land claimed by her, and brought an action at law against her, the question whether it is her land, is a legal question, and must be decided in a Court of law. This Court would not at the hearing undertake to adjudicate upon it, but would send it to a Court of law for trial. It would be idle therefore, for this Court now to enjoin, what at the hearing it would direct to be done. We see no grounds then, upon which the injunction heretofore granted can stand; the motion to dissolve ought to have been allowed, which must be certified to the Court of Equity (207) for Cumberland county. The plaintiff must pay the costs of this Court.

PER CURIAM. Ordered accordingly.

Cited: Thompson v. Williams, 54 N.C. 179.