Burns v. Campbell, 56 N.C. 410, 3 Jones Eq. 410 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 410, 3 Jones Eq. 410

JAMES E. BURNS against DOUGALD CAMPBELL AND JOHN TAYLOR.

Where a bill was filed by the purchaser of land at a sheriff's sale, praying an injunction to restrain one, who entered under the former owner, from cultivating turpentine trees, upon the allegation of irreparable mischief from the defendant’s insolvency, and it turns out that the defendant entered by virtue of a lease of the trees for making turpentine, made before the sheriff’s sale, it was Held that it would bo inconsistent with the relief sought by the bill, to decree the appointment of a receiver of the rent to secure its payment to the reversioner.

Appeal from an interlocutory order of the Court of Equity of Robeson county, Judge Bailey presiding.

A writ of injunction had been issued-in vacation to restrain the defendant Taylor from working and using certain pine-trees for the purpose of making turpentine on a tract of land which the plaintiff had purchased in August, 1856, as the property of the other dei'endant, Campbell. The land had been sold by the sheriff of Robeson under judgments and executions against the said Campbell, and a deed had been made Ho him of the premises, of that date, (Aug. 1856.) The bill alleged that the plaintiff had instituted an action of ejectment 'against Campbell, in the Superior Court of Robeson, which was still pending; that the defendant Taylor had entered into the possession of the premises under the defendant Campbell, had cut and boxed a very large number of the trees for the purpose of obtaining turpentine from them ; that he was preparing to dip and take off the same from the trees, and that as both Campbell and Taylor were insolvent, he would probably lose the whole value of the commodity thus obtained by Taylor, and all rent for the use of the trees which might he received by Campbell; that the land was not fit for any other profitable use except that of making turpentine; that the process of making this article was quite exhaustive in its tendency, and that, from the insolvency of the said parties, the injury thus done to the property by destruction, would be also irreparable.

The prayer of the bill is to restrain the defendants from committing waste and destruction upon the premises by cutting and boxing trees, and from dipping and taking away the turpentine.

The defendants answered severally, Campbell averring that only one third of the interest in the premises had ever belonged to him, and that he had sold and conveyed that interest to his son, John E. Campbell, for a full and fair price, in the year 1853, before any judgment, execution or sale to the plaintiff by the sheriff of Robeson ; that the other shares in the land belonged to his two sisters, Catharine and Nancy j that as agent and tenant of his son John E., he was residing on the land in question, and that as such agent, in January, 1856, he had leased the same for three years to the defendant Taylor for the purpose of operating for turpentine, and that his two sisters above named had also made leases for the same length of time for the same purpose, reserving a certain rent for the premises.

Taylor, in his answer, sets np these leases, which be likewise asserts were made at the time they bear date, to wit, in January, 1856, and says he is working at the business above described, in virtue thereof. lie denies that he is insolvent, but says lie is fully able to pay the rent agreed upon, or any damages that may be arising on account of the injuries complained of; and he likewise denies that any material inj ury can be done to the trees during the unexpired period of his lease, or that the land is unfit for cultivation.

On the corning in of the answers, a motion was made by the defendants to dissolve the injunction, which was ordered by the Court, and the plaintiff appealed.

Troy, for the plaintiff.

Tanks, for the defendant Taylor.

Shepherd, for Campbell.

PicaesoN, J.

There is no error in the interlocutory order disposing of the injunction. The defendant Taylor had leased the turpentine trees upon the land, in January, 1856, for the term of three years. The plaintiff did not acquire title till afterwards, to wit, August, 1856. Consequently, ho took the land subject to the title of Taylor, and has no ground upon which he can ask this Court to restrain Taylor from cultivating the trees in pursuance of the paramount title created by the lease. The plaintiff’s remedy, if he has any, is to have a receiver appointed to hold the rent until his title to the reversion can be establised by his action at law; upon the ground that the rent is incident to the reversion, and belongs to him. This relief is inconsistent with the relief prayed for.

"We concur with his Honor that the injunction ought to have been dissolved upon the coming in of the answers.

Per CdeiaM, Interlocutory decree affirmed.