57 N.C. 225 | N.C. | 1858
On the 15th day of August, 1855, the defendant, James F. Jordan, by a deed of trust, conveyed a house and lot, in the city of Raleigh, to John G. Williams, to secure a debt to the plaintiff, of about $4000, which was registered 23rd of August, 1855, under which, the lot in question was afterwards sold to the plaintiff, and a deed made to him for the same. At the August Term, 1855, of Wake County Court, which began its session on the 20th of that month, the defendant, Samuel Norris, obtained a judgment against the defendants, Jordan and Cooke, for the sum of $230,33, with interest and costs; in which debt Cooke was the surety of Jordan. At the time of the rendition of this judgment, it was agreed between Norris and Jordan, that no execution should issue, until ordered by the plaintiff, or his attorney, and a memorandum, to that effect, was entered on the court docket. No execution was issued until a few days before the November term following, when one did issue, and was levied upon the house and lot in question. A venditioni exponas was issued upon this *226 levy, which was regularly continued to the time of the issuing of the injunction in this case. At August Term, 1856, the sheriff of Wake county, William H. High, paid to Norris, the plaintiff, out of his own money, the full amount of the execution against Jordan and Cooke. After the rendition of the judgment in favor of Norris against Jordan and Cooke, and before the issuing of the execution thereon, Jordan conveyed to divers persons real and personal property, more than sufficient to have satisfied this judgment and execution. The plaintiff alleges that the stay of the execution, by Norris, was for the ease and comfort of Jordan, whereby the lien was attempted to be kept up upon the property conveyed to the plaintiff, James, while Jordan was, at the same time, to have the use and enjoyment thereof, and as such, it was a fraud practiced upon his rights. He further insists, that the payment of the money to Norris, the plaintiff, in that case, by whomsoever paid, whether by Jordan, or Cooke, or by the sheriff, was a full satisfaction of the execution, and that any further attempt to enforce it, by the sale of the plaintiff's property, is against equity and conscience, and he prays an injunction to prevent the same.
The defendant Cooke answered the bill, and stated that High paid the money above mentioned of his own accord, and without any request or desire, on his part, that he should do so, and without any knowledge that he was about to do it. Norris also answered, not, however, varying the above statement of facts.
On the coming in the of the answers, the defendants moved for the dissolution of the injunction, which was ordered, and the plaintiff appealed. The injunction was, as we think, improperly dissolved, upon the motion of both or either of the parties, whose answers were filed in the Court below. Neither of the *227 defendants, Norris or Cooke, had any interest in the cause, which could possibly be injured or prejudiced by the continuance of the injunction, while the plaintiff might be put to serious inconvenience by its dissolution. Norris admitted that the money had been paid him on his execution, but he did not know by whom the payment had been made. The execution as to him, therefore, was satisfied, and he had no further interest in it. The defendant Coke, who was the surety of Jordan, the principal debtor, stated that the money was paid on the execution, but not by him; and that he was informed, and believed, that it was advanced by High, the sheriff of Wake county, in whose hands the writ of venditioniexponas had been placed for execution. Cooke, therefore, had no such interest in the matter, as authorised him to move in the cause. The sheriff High, then, it seems, was the only person interested in the enforcement of the execution, and he was not before the Court. The counsel for the defendants, contends that, as High was a stranger to the judgment and execution, his payment of the money to the plaintiff, in the execution, could not be a satisfaction of it. That may be true, and for the sake of argument, we may take it to be so, but that will not authorise him to move in a cause, to which he is much a stranger as to the judgment and execution. As we have seen that neither of the defendants to the suit, as it now stands, had any interest in the dissolution of the injunction, it ought to have been continued. Whatever steps either the plaintiff or High may think proper to take, we leave to their consideration.
PER CURIAM, Order reversed.
