Miller v. Washburn, 38 N.C. 161, 3 Ired. Eq. 161 (1844)

June 1844 · Supreme Court of North Carolina

38 N.C. 161, 3 Ired. Eq. 161

WILLIAM J. T. MILLER & AL. vs. JOSIAH WASHBURN & AL.

On the hearing of a motion to dissolve an injunction, the defendant is the act- or; and although the contents of his answer are generally to be taken as true, if must fully meet the plaintiff’s equity — there must he no evasion, no disposition shewn to pass over the material allegations of the bill — and if a reasonable doubt exist in the minds of the court, whether the equity of the Bill is sufficiently answered, the injunction will not he dissolved but continued to the'hearing.

'Whore money alone is the demand, the common law security is the person of the debtor, nor will Equity go farther — but’ when property is in contest a Court of Equity will, when the circumstances authorize its interference and when its aid is invoked, secure the property itself during the existence of the controversy.

Especially will the Court of Equity in this State, in analogy to the practice of the Coürts of Chancery in England in cases of waste, exercise this preservative power, where the property in contest consists of slaves, and retain the possession of the slaves until the cause is finally disposed of.'

The cases of Moore v Hylton, 1 Dev. Eq. 435. McNamara V Irwin, 2 Dev. & Bat. Eq. 19. Little v Marsh, 2 Led. Eq. 18. James v hemly, 2 Ired. Eq. 278. Sherrill v Harrell, 1 Ired. Eq. 194 — and Édwards VMassey, 1 Hawks 364', cited and approved.

Appeals from two interlocutory orders made ill this cause at the Fall Term, 1843, of Cleaveland Court of Equity, his Honor Judge Dick presiding — the one dissolving the injunction and sequestration theretofore obtained by the plaintiff against the defendant Abraham Washburn, and the other refusing to dissolve the like injunction and sequestration against the defendant Josiah Washburn. From the former t^ese ¿}ecrees £[ie plaintiffs appealed, and from the latter, the defendant Josiah Washburn.

The bill states that Gabriel Washburn died in the year 1825, leaving a considerable landed estate and several negroes, and that the complaiuants, or those under whom they claim, with the defendants, are his children, and entitled to his personal estate,, together with his widow — that after the death of the said Gabriel, the defendants, at the February Term, 1826, of Rutherford County Court, offered for probate a paper writing, purporting to be the last will and testament of the said Gabriel Washburn, which was admitted to probate, and they qualified as executors thereof, having been appointed by the said will together with their mother Priscilla to execute the same. The bill further states that, at the succeeding July Term of the said court, a petition was filed by the complainants to set aside the probate of the said paper writing, and that the court accordingly ordered an issue of devisavil vel non to be made up to try the validity of the said will — -that this issue was continued on the docket until the July sessions 1827 of the said court, when the parties entered into a compromise, whereby it was agreed between them, that the will should be set aside and that all the property should remain in the possession of the widow until her death, and that then the defendants should have all the lands, and the complainants all the negroes. By the will the whole of the property, real and personal, rvas given to the widow for life, and' after her death, to the defendants. The bill further stated that this compromise was reduced to writing, signed by the complainant for himself and the other claimants, and by the said Josiah Washburn for himself and the said Abraham, and that Abraham assented thereto. It was further agreed at the same time, that the said widow should qualify as administratrix of her said husband, which she did at the March Term, 1828, of the said court, the two defendants being her sureties to her administration bond— that, soon after the compromise, the defendants took into possession the land and divided it between them, and one of the defendants also took possession of a portion of the negroes, with the consent of the widow — that the widow died in the year 1839, whereupon letters of administration de bonis non on the estate of the said Gabriel Washburn, were, by the County Court of Rutherford, granted to the plaintiff William Slade — that, immediately upon the death of the said widow, the defendants took into their possession the slaves respectively bequeathed to them by the will, and again offered it for probate — and the said William Slade, as such administrator, sued them at law to recover the slaves, which suit was pending at the filing of the bill — that the defendants were men in slender circumstances, and the plaintiffs believed and were afraid, that they wohld take the slaves beyond the jurisdiction of the court, and prayed that they might be restrained from so doing. The bill further set forth, that, upon the death of the widow, Priscilla, the right of the defendants as executors survived, and they had a right to seize upon and hold the slaves in that capacity.

Upon the exhibition of this bill, and on the prayer of the plaintiffs, a writ of sequestration was issued to the sheriff of Rutherford, and by him was duly executed.

The defendants answer jointly, and admit the allegations in the bill of the death of their father Gabriel, and aver, that he left a will in writing, of the tenor set forth in the bill— that this will was duly proved by them, and they qualified as executors thereof. They admit, that a petition was filed by Gilbert Harrell and his wife, two of the plaintiffs, to set aside the said probate — and the defendant Josiah admits, that, during the pendency of the said suit, he and the said Gabriel signed a paper, the purpose of which was to compromise the said suit — that the said Harrell signed it for himself and wife, and not for the other heirs and distributees of the said Gabriel, who were no parties to it, and that he signed it for himself alone, and not for himself and his brother Abraham,— that, on the contrary, it was expressly understood and agreed^ that he was not to be bound by it, unless Abraham should agree to it and sign it, which he never did. And Abraham avers fae never did agree to it — on the contrary, he refused to be bound by it, as soon as he heard of it. They admit that their mother took out letters of administration upon the estate of their father, and they state, that, upon her death, they took possession of the negroes as legatees, and not as executors, They claim to hold the negroes as their property, and 'deny that they belong to the plantiffs — and aver that the probate of their father's will was never set aside, but that it still remains in force. They deny that they .ever had any intention of removing the negroes out of the State .or of running or removing their other property.

Upon the coming in of the answers, the Judge presiding removed the sequestration from the slaves of the defendant, Abraham Washburn, and ordered them to be delivered to him; but continued the sequestration upon the slaves of Josiah, until the final hearing of the cause.

The plaintiffs appealed from the former order, and the defendant, Josiah, from the latter, ’

Alexander for the plaintiffs,

Caldwell Hoke for the defendants,

Nash, J.

The equity of the complainants’ bill is, that a controversy existed in the- County-Court of Rutherford, as to the validity of the last will and testament of Gabriel Washburn, 'deceased, and, during its pendency, a compromise was entered into between the parties for its final adjustment — that these defendants were the propounders of the will, and the plaintiffs, or some of them, the caveators — and that the compromise was entered into in behalf of the whole of those who were interested in setting aside the paper writing — that by the compromise it was agreed the property should remain with the widow, Priscilla, during her life, and that at her death the land should belong to the defendants, as devised, and the negroes to the other children, and that let-tors of administration should be taken out by the widow on the estate of the said Gabriel — that, in viola!ion of this compromise, the defendants, upon the death of the widow, immediately took possession of the negroes and divided them between themselves, as they were bequeathed to them in the alleged will. The object of the bill is to enforce this compromise of family disputes, and prevent the defendants, in the •mean time, from removing the negroes beyond the jurisdiction of the court. On the hearing of a motion to dissolve an injunction, the defendant is the actor, and, although the contents of his answer are generally to be taken as true, it must fully meet the plaintiff’s equity. There must be no evasion — no disposition shown to pass over the material allegations of the bill- — and, if a reasonable doubt exists in the mind of the court, whether the equity of the bill is sufficiently answered, the injunction will not be dissolved, but continued to the hearing. McNamara v Irwin, 2 Dev. & Bat. Eq. Rep. 19. Little v Marsh, 2 Ired. Eq. Rep. 18. Moore v Hylton and others, 1st Dev. Eq. 435. James v Lemly, 2 Ired. Eq. 278. Sherrill v Harrell, 1 Ired. 194.

■ In this case the defendants join in their answer. Josiah admits he signed the compromise, but avoids it by alleging that Harrell signed for himself and wife alone and- not for the other parties, who therefore were not bound, and that he signed, under the express understanding, that it was not to be binding on him, unless his brother Abraham agreed to it; that he was not present, and, as soon as he heard of it, disagreed to it, and refused to become a party ; yet they both admit, that letters of administration upon the estate of their father Gabriel were issued to Priscilla, the widow, and they avoid saying, whether they signed the administration bond as her sureties, though the fact is averred in the bill, and their answer required.

In this stage of the proceedings, we must assume, that the defendants did become their mother’s sureties, and that Abraham, therefore, did concur in the agreement for .a compromise — neither of them gives any account of the suit instituted to prove the will or to try the issues after the time of the alleged compromise, and, after the death of their mother in the year 1839, eleven years after she had become administhey again bring forward the will and offer it for probate. We cannot say we have not a reasonable doubt whether the equity of the bill is answered. When money is alone the demand, the common law security is the person of the debtor, nor will equity go farther; but when property is in contest, chancery will in special cases exercise its preservative power and look further than to the personal liability of the defendant. It will, in cases where the circumstances authorise its interference, and where its aid is invoked, secure the property itself, during the existence of the controversy. Thus in cases of waste, the common law gave the writ of waste, and to aid and secure to the plaintiff the full benefit of the process, the writ of estrepement to stay the further injuring of the property, during the contest, was awarded. The writ of rvaste, both in England and in this country, from its peculiar features, has become obsolete, and has been succeeded by the more convenient and less cumbrous action on the case in the nature of waste. With the old writ fell that of the estrepement, and the power of the Court of Equity was called in to supply its place, in aid of the more modern action on the case, and in analogy to the writ of estrepement. Equity, when it interferes, will secure the property in the contest during the litigation. With us, we have a species of property peculiarly requiring the exercise of this power in a Court of Chancery. Without it, the fruits of a judgment at law would often prove illusory. Thus Judge Henderson, in the case of Edwards v Massey, in 1st Hawks 364, says, “ the same principle which in-' duced the chancery in England to interfere in the case of waste applies in all its force in cases of property in slaves ; for the nature of the property is such, that possession may be lost by the most vigilant owner, without there being an actual taking, or the commission of a trespass.” In cases, then, of this species of property, in which it is proper for a Court of Equity to interfere, having taken possession of the property, the court, in analogy to the principle and object of the estrepement, retains that possession, until the cause is finally disposed of.

It is the opinion of the court, that the interlocutory decree in this case, removing the sequestration from the negroes of Abraham Washburn, was erroneous, and that the sequestration ought to have been retained until the final hearing. The court is further of opinion, that there was no error in the interlocutory decree, retaining the sequestration on the negroes of Josiah Washburn. There must be judgment against the' defendants for both appeals.

Per Curiam, Certificate ordered accordingly.