Whittaker v. Hill, 96 N.C. 2 (1887)

Feb. 1887 · Supreme Court of North Carolina
96 N.C. 2

WILLIAM P. WHITTAKER and wife v. THOS. N. HILL, Trustee, and W. W. GWATHMEY & CO.

Deed in T'ust — Injunction.

Where the complaint states facts sufficient to authorize a temporary-injunction, and the answer raises serious issues, the determination of which is doubtful, it is not error to continue the injunction till the hearing upon the merits, especially when it appears that the subject matter of the action will remain unimpaired.

(Harrison v. Bray, 92 N. C., 488; and Turner v. Cuthrell, 94 N. C., 239; cited and approved).

Civil ACTION, heard before Shepherd, Judge, at March Term, 1886, of Halifax Superior Court, upon complaint, *3answer, affidavits, &c., to dissolve an injunction thereto-granted, to restrain the defendants from selling certain lands conveyed to secure the payment of debts by the defendants. His Honor refused to dissolve, and continued the injunction to the hearing. The defendants appealed.

Mr. Walter E. Daniel, for the plaintiffs.

Mr. Thos. N. Hill, for the defendants.

Merrimon, J.

The defendants in effect confess and avoid the alleged cause of action. They admit that they received the money, the proceeds of the sale of the personal property, including the cotton, as alleged in the complaint; but they aver that in the latter part of the crop year of 1884, at the request of the husband plaintiff, they advanced to him money to *4enable him to gather his crop, with the understanding and the agreement on his part with them, that the unsecured debt thus created by him should be paid from the proceeds of the crop before» any part of the secured debt mentioned should be paid; that in pursuance of this agreement, they applied so much of the proceeds of the cotton as was necessary to pay the unsecured debt, and they allege that there is a balance of $462.48 and interest, of the debt embraced by the deed of trust, yet unpaid.

The action seems to have been brought in good faith, and if the complaint be taken as true, the husband plaintiff is entitled to relief by injunction The defendants, however, while admitting the material facts stated in the complaint, allege other facts, which, if true, seriously put in question the plaintiff’s right to the relief sought.

The letters of the husband, put in evidence by the defendants, tend strongly to show that he did agree to ¡Day the unsecured debt as alleged by the defendants. The amount of this debt is not stated, as agreed to by him, nor does he admit that he received the statement of account tendered, or its correctness. The matters of fact at issue are not entirely free from doubt, and besides, important questions of law'are raised that ought not to he decided until the action shall be tried upon the merits.

In such cases, the injunction will be continued until the hearing upon the merits, especially when it appears, as it does in this case, that the security will remain unimpaired. Harrison v. Bray, 92 N. C., 488; Turner v. Cuthrell, 94 N. C., 239.

■ There is no error. Let this opinion be certified to the Superior Court according to law.

No error. Affirmed.