21 S.E. 552 | N.C. | 1895
It appears from the complaint that B. D. Suttle conveyed to W. C. Bostic the tract of land by deed dated 10 December, 1890, but that the deed was not registered until 12 February, 1895; that the vendee paid $8,000 for the land, $3,000 in cash of his own means, borrowed of the plaintiff Crawford $5,000, with which the balance of the purchase money was paid, and executed together with his wife a deed of trust on the land to J. B. Bostic to secure the payment of the $5,000 borrowed from Crawford; and that the deed of trust was registered in Cleveland County, where the land is situated, on 25 May, 1892. It further appears from the complaint that because of condition broken a sale of the land was made under the trust deed by J. B. Bostic, on 21 January, 1893, and that Crawford, cestui que trust, bought the land at the price of $5,350, went into possession, and is still in possession enjoying the uses and profits thereof. No deed, however, has been executed by the trustee to the purchaser Crawford. It appears further from the complaint that on 23 October, 1893, the defendant Young procured a judgment against B. D. Suttle, the original vendor, for $421.25, had the same docketed in Cleveland County, where the land is situated, and that he had execution issued to the sheriff of Cleveland on 29 January, 1895, and that the sheriff was about to sell the land when the plaintiff commenced this action. *446 The question before the Court for decision is whether the plaintiff can invoke the equitable relief of the courts to prevent the (768) defendants (the plaintiffs in the execution) from proceeding to sell the land under their execution; and this involves of course the question as to whether this action can be maintained under the Act of 1893, ch. 6. For if such an action as this can be maintained under that act, then the plaintiff would be entitled to the relief by injunction, which he seeks if the facts warranted it. The point in the case, when the facts are summarized, is briefly stated: The deed from Suttle (the defendant in the execution) to W. C. Bostic, though dated 10 December, 1890, was not registered (although the purchase money was paid at the time of the execution of the deed) until 25 February, 1895. The judgment of Young, the defendant in this action, against Suttle was obtained, and execution levied upon the land before the registration of the deed, and the plaintiff Crawford is in possession of the land under the sale made by the trustee.
Where a party has a full remedy at law, the court of Equity will not grant extraordinary relief by way of injunction. In this action, in case of a sale of the land under the execution, the purchaser, before he could assert title derived from the sale, would have to bring his action at law for the possession against the plaintiff who is in possession, and prove his title to the property; and in such an action the plaintiff in this, the defendant in that action could raise every question involved in the controversy, which he seeks to raise in this action. In that action, he could set up in his defence the very matters he now alleges in his prayer for equitable relief. Browning v. Lavender,
The facts in the present case are easily to be distinguished from those of the case of the Mortgage Co. v. Long,
There is no error in the ruling of his Honor dissolving the restraining order and refusing the injunction, and the same is
Affirmed.
Cited: Blalock v. Strain,