Tbe contention of tbe defendants tbat tbe court below should have dissolved tbe temporary restraining order cannot be sustained. Tbe plaintiff bolds a deed wbicb, on tbe face of tbe record, conveys at least a two-tbirds interest in tbe timber. Whether tbe instrument relied on by defendants in fact creates a prior claim to all tbe timber is yet to be decided. While we express no opinion in respect thereto, we concur in tbe conclusion of tbe court below tbat plaintiff has a prima facie vested interest wbicb should be protected pending tbe final determination of tbe issues raised by tbe pleadings.
Thus tbe one question presented for decision is this: Did tbe court below, on tbe facts found, bave authority to permit plaintiff, upon tbe execution of tbe required bond, to enter upon tbe premises and cut tbe timber thereon pending final determination of tbe action? We must answer in the negative.
In 1901 tbe law controlling tbe right to' injunctive relief against a continuing trespass in tbe form of cutting and removing timber trees was substantially modified. Chap. 666, P. L. 1901. (For a brief review of tbe law of injunctions in such cases prior to tbat date see Lumber Co. v. Cedar Co., 142 N. C., 411.)
Section 1 of said Act, now G. S., 1-487, provides tbat whenever in an action to restrain a continuing trespass in tbe form of cutting and removing timber trees “tbe court finds as a fact tbat there is a bona fide contention on both sides based upon evidence constituting a prima facie title” tbe judge shall not permit either party to cut said trees (except by consent) until tbe title to said trees has been finally determined in such action.
Section 2 thereof, now G. S., 1-488, vests tbe judge with discretionary power to permit tbe party who convinces tbe court of tbe bona fides of bis contention and offers evidence “showing a prima facie title” to cut the timber in controversy pending tbe action upon tbe giving of bond as required by law, provided tbe court finds as a fact tbat tbe contention of tbe adversaiy party “is not in good faith and is not based upon evidence constituting a prima facie title.”
Since tbe enactment of this statute tbe cutting of timber wbicb is the subject matter of tbe action may be permitted only in tbe event one of tbe parties is clearly an interloper without a bona fide claim of right and tbe other acts in good faith under a title prima facie valid. To support an order to tbat effect tbe judge must so find and incorporate such finding in bis judgment. Johnson v. Duvall, 135 N. C., 642; Lumber Co. v. Cedar Co., supra; Kelly v. Lumber Co., 157 N. C., 175, 72 S. E., 957.
*236Here tbe court below made no such finding. On tbe contrary it found that tbe defendants are acting in good faitb under tbe paper writing-executed by Eugene McLeod. Tbis instrument is not valid as a conveyance for want of a seal. It will, however, operate as a contract to convey, enforceable in equity, at least against Eugene McLeod and those claiming under him by conveyance subsequently recorded. Willis v. Anderson, 188 N. C., 479, 124 S. E., 834; Robinson v. Daughtry, 171 N. C., 200, 88 S. E., 252; Vaught v. Williams, 177 N. C., 77, 97 S. E., 737; Lumber Co. v. Corey, 140 N. C., 462. Hence tbe provisions of G. S., 1-487, are controlling.
It follows that tbe judgment below must be modified in accordance with tbis opinion. As so modified it is affirmed.
Modified and affirmed.