19 S.E. 104 | N.C. | 1894
It was admitted that the articles of personal property were raised on the lands that belonged to the feme defendant. Counsel for defendant moved the court to discharge the property and dissolve the restraining order as to it. The court denied this motion, holding that there was enough evidence to go to the jury as to whether there was not an assent on the part of the wife that the husband might use as his own and for his separate estate the property assigned, and the defendants excepted.
The defendants, Martha J. Ward and Herbert Ward, the assignees, moved his Honor that they be allowed to file a bond or undertaking to secure the plaintiff, covering double the full value of the property embraced in the injunction, and that therefore should be vacated. Motion refused, and defendants excepted.
The court gave the judgment appointing a receiver and continuing the injunction, and defendants appealed.
"It is better" (said Shepherd, C. J., in Wells v. Batts,
There was no finding in the court below that Herbert Ward, the trustee named in the deed of trust executed by J. T. Ward, was unsuitable or unreliable because of mental deficiency or moral obliquity. It appeared that he was quite young (twenty-one years old in November, 1893), while it was suggested in the pleadings that he would probably be influenced in the management of his trust by the other defendants, his father and mother. On the other hand, he offered to file a bond in double the value of the property in his hands, after having introduced testimony tending to prove his good character. (151) Unless sufficient cause was shown for removing the trustee, who had the custody of the property, either on account of his previous conduct of the business or his unfitness for some other reason, it would seem that there would not be sufficient ground for appointing a receiver and continuing the injunction as to the other property when he was ready to give ample security to indemnify all parties interested against loss by reason of default on his part. When the cause shall be heard below the proof upon this point will doubtless be fully considered. There is
Error.
Cited: Bray v. Carter,