Green v. Phillips, 41 N.C. 223, 6 Ired. Eq. 223 (1849)

Aug. 1849 · Supreme Court of North Carolina

41 N.C. 223, 6 Ired. Eq. 223

PETER GREEN vs. JAMES PHILLIPS.

In injunction cases, where the answer does not confess the equity Bet up in the bill, and is not evasive but contains a fair responee to all the allegations, the injunction will be dissolved, as a matter of course.

Appeal from an interlocutory order, made in the Court of Equity of Ruthprford County, at the Fall Term 1848, his Honor Judge Manly presiding.

The bill alleged, that, in March, 1844, the plaintiff executed to the defendant and Jacob Phillips, a mortgage for some slaves, to secure the payment of a debt of nineteen hundred dollars, which he owed them ; that the plaintiff at one time made a payment of four hundred dollars to the said Jacob, and at another time the said Jacob re ceived two negroes at the price of seven hundred and fifty dollars, and at another time there was a small payment of five dollars ; that he afterwards paid to the said Jacob the sum of seven hundred and fifty dollar’s on the 9th of September, 1844, for which he took his receipt, which receipt is filed as an exhibit. The bill further alleges, that, after the death of the said Jacob Phillips, when the defendant demanded the slaves, the plaintiff informed him, that the mortgage debt was nearly, if not quite, paid off, and offered to pay any balance that might be due, if there had been a mistake as to interest upon a rough calculation ; but that the defendant, insisting that there was a large amount due, demanded the slaves, and» upon the plaintiff’s refusing to deliver them, brought an action of trover and recovered damages to the amount of two thousand dollars. The prayer is for an injunetion against an execution upon t.he judgment at law, and that the plaintiff may be permitted to redeem the mortgage, upon paying the balance, if any, of the mortgage debt, and that he may have a reconveyance of the slaves.

The defendant, in his answer, admits ail the payments,’ except the alleged payment of seven hundred and fifty dollars on the 9th of September 1544, and he avers that he does not believe that such payment ever was made, and he believes that the whole balance of the debt with interest is justly due, after deducting the admitted payments. He says he does not believe, that the signature, of Jacob Phillips, who was his father, to the alleged receipt is genuine, but believes it to be a forgery, or else that the receipt was given for the price of the two negroes, seven hundred and fifty dollars, and has been since altered in its date, and he assigns, as his reason for so believing, besides the difference in the hand-writing, that his father told him, on th.e day he was killed, that there was due upon the debt a balance of about seven hundred and forty-five dollars and interest. He further states, that, soon after his father’s death, he called upon the plaintiff for payment, and the plaintiff did not allege that he had paid the whole, or nearly the whole, of the debt, and said nothing about the alleged receipt, but offered to pay the balance of seven hundred and forty-five dollars with interest-, if the defendant would take two notes.

A motion to dissolve the injunction was refused and the injunction ordered to stand till the hearing. From this order the defendant, by leave of the Court, appealed.

Guión and N. W. Wooclfm, for the plaintiff.

Baxter, for the defendant.

Pearson, J.

The answer does not confess the equity-set up in the bill. It is not evasive, but is a fair response to all the allegations. This is sufficient to dissolve the injunction, as to the amount of the disputed payment. We do nqt express any opinion as to the disputed facts, as the case may be retained and brought to a final hearing.

The interlocutory decree should be reversed, and a decree entered, making the injunction perpetual, as to all damages recovered at law except an amount, equal to the balance claimed by the defendant to be still due upon the mortgage debt, and dissolving the injunction as to such balance, and there must be a decree against the plaintiff for the costs in this Court.

Per Curiam.

Ordered to be certified accordingly.