Opinion
(June Term, 1862.)
1. Where the obligee, in a bond of title, paid a material portion of the purchase money down, and gave a note for the residue, and entered into possession and continued it up to the time of a suit in ejectment by the obligor, it was Held, to be a strong case for the court of equity to interfere by injunction, to prevent the obligee from being turned out, under the execution, in the suit at law.
2. Where, to a bill for an injunction, the defendant answers lightly and evasively to material allegations, the injunction will not be dissolved.
3. Where a new matter is introduced in an answer, in avoidance of the plaintiff's equity, it will not be considered on a motion to dissolve.
Appeal from the interlocutory order of the Court of Equity of WAKE, ordering the dissolution of an injunction, BAILEY, J.
The defendant, John Pearce, on 15 June, 1857, entered into a penal bond payable to the plaintiff, James P. Allen, which was conditioned that "if the said J. P. Allen shall fully comply with the contract in the above premises, and pay to the said John Pearce the remainder of the purchase-money, with interest and necessary costs of these transactions, which is $175.10, seventy dollars of which, is this day paid in cash and the receipt whereof is hereby acknowledged, and the remainder is $107.10, with interest from the 7th, then the said John Pearce is to make him a good and lawful title to the above lands." The plaintiff immediately went into possession of the premises, and has occupied them ever since.
Before this suit was brought, Pearce falling into pecuniary difficulties, conveyed the land in question to one Geo. W. Thompson, as trustee for the payment of his debts, and on 29 September, (310) 1861, he sold the same at public auction to the defendant, Marcellus Pearce, and made him a deed in fee simple for the same. The plaintiff alleges that he attended at this sale by the trustee and made objection thereto. Also that the defendant, Marcellus, had full knowledge of the equitable claim of the plaintiff, and so had the said G. W. Thompson, when the deed of trust was made to him.
The plaintiff alleges that before this sale, and before this suit was brought, but after the money fell due, he tendered the purchase-money in full, and demanded a deed in fee simple from the said Pearce and the other defendants claiming under him, which was refused.
The plaintiff further shows that the defendant, Marcellus Pearce, sued him in ejectment and obtained a judgment by default, and its threatening to turn him out of the possession. The prayer is for an injunction (which issued) and for an account for the ascertainment of the balance of the purchase-money, and for a conveyance to him of the legal title on the payment thereof also for general relief.
The defendants admit the bond to make title to plaintiff; they also admit that the payments, alleged, have been made; the defendant, Pearce, admits also the tender, but denies that it was in full or that it was made before the execution of the deed of trust. The manner of this denial is noticed in the opinion of this Court. The defendant, Marcellus Pearce, denies that the plaintiff forbade the sale by the trustee, but alleges that the assented to the sale and urged the running off of the land.
On the coming in of the answer, the defendants' counsel moved for a dissolution of the injunction, which, on argument, his Honor granted, and it was ordered to be dissolved; from which order the plaintiff, by leave of the Court, appealed.
Fowle, for the plaintiff.
A. M. Lewis, for the defendants.
The right of the plaintiff to call upon the defendant, John Pearce, for a specific execution of his contract, for the sale (311) of the land in controversy, is clear beyond all question. The contract for the sale is in writing, a part of the purchase-money was paid in cash, and a note given for the residue, and the plaintiff thereupon took, and still continues in, possession. The plaintiff alleges that before the execution of the deed, in trust, by the said John Pearce to the defendant, Thompson, he tendered to Pearce the balance of the purchase-money, and demanded a conveyance, which was refused. And this defendant admitting the written contract of sale, and admitting also the tender, denies that it was in full, or was made before the execution of the deed in trust. The denial, however, is made so slightly and evasively as to have very little weight. It is true, that the tender was made after the note became due, but it is idle to say, as the defendant, John Pearce, does, that the contract was abandoned, and the plaintiff's equity relinquished. There cannot be the slightest pretense that this case is an exception to the maxim that in equity "time is not of the essence of the contract." See Falls v. Carpenter, 21 N.C. 237, and the note to Battle's edition.
The defendant, John Pearce, had then no right, upon his answer, to move for a dissolution of the injunction, and the other defendants have no greater rights than he has, as they do not deny that they purchased with notice of the plaintiff's claim.
The allegation, faintly made by the defendant, Marcellus Pearce, that the plaintiff assented to the sale by the defendant, Thompson, as trustee, is an averment of new matter which may possibly avail him, if he can prove it on the hearing, but it cannot be considered, on this notice to dissolve the injunction, it being and established rule that the injunction must be continued, unless the equity, set forth in the plaintiff's bill, be denied in he answer; Lindsay v. Etheridge, 21 N.C. 36. The order dissolving the injunction must be reversed.
PER CURIAM. Decree accordingly.
(312)