Smith v. Auldridge, 3 N.C. 382, 2 Hayw. 382 (1806)

Jan. 1806 · North Carolina Superior Court

3 N.C. 382, 2 Hayw. 382

Smith vs. Auldridge.

TN May, 1795, Auldridge purchased a tract of land from Tur» ner, running to a corner, and from thence south 50, E. down the cret k to a white oak, at the mouth of a branch: thence, &c. Turner afterwards sold to Smith the land bttween the creek and the said line, south 50, E. not sayir.g down thecrcck. Auldridge got possession of the land between the creek and this-line, saying the creek was the boundary of his land, as well as of the patent under which he claimed; and Smith sued him in this action of ejectment. Hall, Judge, charged that the creek was the boundary, and included within the bounds of Auldiidge’s deed the land iu controversy. Smith proved on the trial many admissi-efts of Auldridge, after his purchase, that tbs said line, south SO, E. was his boundary; and many offers on his part to pure ¡bass the land between that and the creek. Upon this evidence after a veidict for the defendant, Smith filed his bill, stating a mistake m drawing the deed, and that the said line was the line shewn to him at the time of the parchase, and understood it to be the line purchased to. It prayed an injunction against the costs of the action in ejectment, until the court of equity should make further order upon this bid.

Hall, Judge,

(after argument.') The plaintiff knew of Auld> yidge’s claim, and has tacen a wrong mode of obtaining redress. He should not have brought an ejectment. The costs have accrued in consequence of this wrong step, which is imputable to him. It is said the defendant was wrong in setting up a defence for the lands claimed by the plaintiff, as he knew he, the defendant, had sot purchased them. The plaintiff however had every reason to believe he would set it up, because he bad taken possession and k“pt it. The first departure from correctness was on the part of tire plaintiff in this bill, and therefore I will not screen him by an injunction, from the costs incurred thereby.

Injunction refused.