90 N.C. 327 | N.C. | 1884
In the argument before us, it is insisted that the provision of the act of 1870 (THE CODE, § 237) which requires a defendant, before being allowed to put in any defence to an action brought for the recovery of real property or of possession, to enter into bond with sureties to secure the costs and damages which may be recovered, and as construed in the cases ofRollins v. Henry,
The evidence which we are requested to look into upon a construction of the amendment introduced into the constitution in 1875 (Jones v. Boyd,
The affidavits filed show that the defendant Melissa brought suit in 1878 against the tenant in possession under the present plaintiff, and instead of prosecuting the same entered upon the premises and reinstated him, her co-defendant, as her own tenant, as is alleged by the fraud of the latter, and in consequence failed in her action; while the defendants aver that the tenant yielded to the superior title of the said Melissa, and the possession thus acquired in October, 1881, has continued ever since. Without going into the details of the evidence in connection with the alleged insolvency of the defendant Melissa and her inability to respond in damages, should the plaintiffs succeed in their suit, we think in the present condition of the controversy the judge was fully warranted in making the order as favorable at least to the defendants as they could reasonably require. *330
What was said in Horton v. White,
We do not understand the requirements of security for damages and costs before a party can resist a suit to recover possession of land, as in any degree abridging the power of the court to commit property in litigation, under the circumstances pointed out in the cases referred to, to the custody of a receiver for its safety and the security of the rents and profits issuing therefrom, though this additional remedy may less frequently call for its exercise. Indeed this is all that the order undertakes to do, for upon the execution of the bond the defendants are allowed to remain in the possession. Vaughan v. Vincent, supra.
The expediency of this prompt action finds its justification in the fact that the time for filing an answer had been enlarged for two months, and even then it was uncertain if the principal defendant would give the required bond.
The indulgence allowed seems to suggest the propriety of the action of the court to avoid possible injury to the plaintiffs, and it meets our approval. There is no error. Let this be certified.
No error. Affirmed.