Perkins v. Hollowell, 40 N.C. 24, 5 Ired. Eq. 24 (1847)

Dec. 1847 · Supreme Court of North Carolina

40 N.C. 24, 5 Ired. Eq. 24

EXUM PERKINS vs. WILLIAM HOLLOWELL & AL.

O» a motion to dissolve an injnnotion, it is a rule now well established, that when, by the answer, the plaintiff’s whole equity is denied, and the statement in the answer is credible, and exhibits no attempt to evad'e the material charge of the Bill, it must be allowed.

The cases of Moore v. Hylton, I Dev. Eq. 429, and Sharp v. King, 3 Ire. Eq. 402, cited and approved.

Appeal from an interlocutory order of the Court of Equity for Wayne County, at the Fall Term, 1347, directing the injunction which had theretofore been granted in the cause to be continued to the hearing, his Honor Judge Manly presiding.

The bill is filed to eompel the specific execution of a contract, and for an injunction. The following facts are admitted by the pleadings. One Raiford Hooks was the owner of a couple of lots in the town of Goldsboro-^ which, in 1840, he contracted to sell to the complainant,, for the sum of one hundred and fifty dollars, payable in three several instalments, and secured by three several bonds or notes. Hooks, at the same time, executed to the plaintiff a bond to make title, when the money was paid. All the money was paid to Hooks, but about $20, as the notes fell due. The plaintiff was, at that time, indebted to the defendant, Hollowell, in the sum of $40>, and with a view to secure its payment, it was agreed between them, that Hollowell should pay to Hooks the $20, due him, and the plaintiff should surrender to Hooks, his bond to make title, and the latter should convey the lots to Hollowell, who should, at the same time, execute to-the plaintiff a bond to make title to him, whenever he should pay to him, the two sums of f 20, and $40, amount-payment of which, the plaintiff was to execute his note to Hoiloweli. All of this was done. The plaintiff has been in possession ever since his purchase from Hooks, and still is. The plaintiff then alleges, that he had paid to Hoiloweli all that was due to him, except @20 — that at Spring Term, 1846, of Wayne Superior Court, he was fined $50, and being unable to pay it, he proposed to the defendant, Hoiloweli, to become his surety to the sheriff, for the amount of the fine, and that he would surrender to him his bond to make title, and that Hoiloweli should execute a new bond to make title, when the plaintiff should pay the @20, and the fine. He avers that this proposition was acceded to by Hollowell, to whom he immediately surrendered the bond for title, then in his possession, and gave his obligation for the two sums of @20, and @50; but that Hoiloweli did not execute his bond to make title upon the pretence that he was then too busy. The bill then charges a sale of the lots by Hoiloweli to the other defendant, Hines, who has sued him in an action of ejectment, obtained' judgment, and threatens to turns him out of possession ; and that he has tendered to Hoiloweli what was due him, and demanded a citle.

The defendant, Hoiloweli, in his answer, admits that plaintiff has paid, upon the @60 note just given, about but avers that the payment was made in notes upon other persons who have since proved to be entirely insolvent. He denies, positively, that he ever agreed to become the surety of the plaintiff to the sheriff, for the imposed, or to take up the bond to make title, which had previously given, and to execute another to make when the plaintiff should pay to him, the amount of fine, and the balance due on the @60 note. He avers fact to be, as to that second contract as follows: the Court inflicted upon the plaintiff the fine of @50, also adjudged him to pay the costs ; all of the latter the plaintiff did pay, but about @9. The plaintiff, being unable to pay the fine and balance of the costs, did apply to him to be his surety to the sheriff for it, which he positively refused. The plaintiff then proposed to him, if he would surrender up the note which he held upon him, for $60, and pay the sheriff, the sum due him, then amounting to @60, he would surrender up to him his bond to make title to the lots, and thus make to him a bona fide sale of them; That he agreed to the purchase of the lots, thus proposed by the plaintiff and gave to the sheriff his note for $60, covering the fine and costs due ; and that it was well understood, at the time, by the plaintiff and the defendant, that this note to the sheriff and the balance due upon the $60 note, were to be in full satisfaction for the interest the plaintiff had in the said lots. He admits the sale to the defendant Hines, and the recovery in the action of ejectment.

The Court refused a motion to dissalve the injunction and ordered it to be continued to the hearing. From this order the defendants appealed.

Husted and Houze, for the plaintiff

Mordecai, for the defendants.

Nash, J.

We take no notice of the answer of Hines, as the cause must, in this stage of it, turn entirely upon the equities of the plaintiff and the defendant Hollowell. On a motion to dissolve an injunction, it is a rule, now well established in our Courts, that when, by the answer, the plaintiff's whole equity is denied, and the statement in the answer is credible, and exhibits no attempt to evade the material charges of the bill, it must be allowed. Moore v. Hylton & others, 1 Dev. Eq. 429. Sharpe v. King, 3 Ired. Eq. 402. In this case, we think the whole of the plaiutiff’s equity is denied. The plaintiff has placed his case, solely upon the ground, that by his last contract with the defendant Hollowell, he was entitled, upon paying the $20, the balance due upon the first $60 note, and fine, and the costs imposed on him in Wayne Superior Court, to a conveyance of the land. This allegation is directly, and positively denied by the answer. Hoilowell admits, the proposition was made by the plaintiff, but says that he distinctly refused to accede to it, and the reasons he assigns, we think, are credible. The proposition was, that he should become the surety of the plaintiff to the sheriff', for the fine and costs, and he refused it, because, as he alleged, he had already been his surety, and that he never had, or could get, any money from him, and that when he did pay him, it was in small notes upon others, who were entirely insolvent. If these things were facts, it would well explain, why he should refuse to be any farther bound for him. Nor do we perceive any attempt to evade answering any material charge. The defendant does not stop at denying the material charge of the plaintiff, but proceeds to state what the contract was ; that it was for the sale and purchase of the equity, which was then in the plaintiff, the legal title being in him, and that it was so distinctly under stood by the parties, at the time the contract was made.

A motion was made, in the Court below, to dissolve the injunction, which was refused, and an order made that it should be continued to the hearing. From this interlocutory order, the defendants appealed to this Court. We think, there was error in the order, and that the injunction ought to have been dissolved.

This opinion will be certified to the Court below, and the plaintiff’ will pay the costs of this Court.

Per, Curiam.

Ordered accordingly.