Hunt v. Sneed, 62 N.C. 351, 1 Phil. Eq. 351 (1868)

Jan. 1868 · Supreme Court of North Carolina

62 N.C. 351, 1 Phil. Eq. 351

JAMES M. B. HUNT and wife and others, v. WILLIAM M. SNEED and wife, and others.

One who files a bill to obtain an injunction against a suit at law, must in general submit to a judgment in such suit; the only exception being where the complainant prays for a discovery to aid him in his defence at law.

(Williams v. Sadler, 4 Jon. Eq., 378, cited and approved.)

Bill, seeking- to enjoin a partition of land at law, filed to Fall Term 1866 of the Court of Equity for Granville. At Spring- Term 1867 an answer was filed, and the defendants ■moved that the plaintiff be required to submit to a judgment of partition in the proceedings at law, with a stay of all proceedings thereupon until the further order of this court; and that the injunction already obtained be dissolved to that extent. This motion was disallowed, and the defendants appealed to this court.

Hdwards, for the appellants,

cited Ga<pehart v. Mhoon, Bus. Eq., 30, and Lloyd v. Heath, ibid, 39.

Venable contra.

Reade, J.

The only question is whether the plaintiffs in this suit ought to have been required to submit to a judgment in the suit at law ? Such is certainly the general rule. W e are not aware of any exception to it unless where the complainant alleges that the answer will discover facts which will aid him in his defence at law. Williams v. Sadler, 4 Jon. Eq., 378.

The strong statement in the bill of the complainant’s equity is quite sufficient to warrant the injunction against the execution of tlie judgment at law; but there is no statement of facts to take the cause out of the general rule.

The defendants therefore were entitled to an allowance of their motion to have the injunction so far modified as to require the complainants to submit to a judgment, and his Honor’s refusal to allow the motion was error.

It was insisted in this court for the complainants, that inasmuch as the court of equity and the court of law have concurrent jurisdiction in cases of partition, and inasmuch as the court of equity has ample powers over the subject, the present cause absorbs or draw7s to it the suit at law, and all the rights of the parties can be settled in this suit; so that there is no necessity that the suit at law shall continue. Probably that would be so if this were a bill lor partition, as the suit at law is. For then, in any event, partition would be ordered. For instance, if the suit at law were for partition by metes and bounds, as it is, and this bill were for partition by sale and division of the proceeds- — -there would be partition at all events, the only question being as to the mode. But this bill is not for partition, but to prevent partition ! So that if the complainants have a decree it will prevent such partition, and end both suits in their favor; but if the defendants obtain a decree here, they will be entitled to a partition at law, — to prevent any impediment to which, they are entitled to a judgment in their suit at law before being liable to defend this suit. p

This opinion will be certified to the court below, to the end that' the injunction be modified according to the motion of the defendants, and thereupon be continued until the hearing.

Per Curiam.

Ordered accordingly.