195 N.W. 660 | N.D. | 1923
This is an appeal from a temporary injunctional order. The facts, so far as material here, are as follows:
On May 8th, 1912, the then owners of the SE}, section 17, township 136, range 93, entered into a written contract with the defendant whereby they agreed to sell and the defendant agreed to purchase said premises for the sum of $2,560, payable in certain stipulated annual installments.
On May 21st, 1913, the same parties entered into a contract for the purchase and sale of the ME}, section 21, township 136, range 93 on the so-called crop payment plan. Under the terms of the contract, the defendant agreed to pay $4,480 for this land; payment to be made by the delivery by defendant to his vendors, on or before a stipulated date, at Mott, North Dakota or such other place as might thereafter be mutually agreed upon, of all the crop raised on a certain number of acres of said land. The contract further provided that the defendant ■would execute and deliver to his vendors a chattel mortgage, on all crops sown and grown on said land during the life of the contract. Subsequently the vendors in both of said contracts sold and transferred all their right, interest and title in and to said lands and in and to said contracts, and the plaintiff has succeeded to all rights and interests of said vendors in the lands and in the contracts.
In April 1923, said plaintiff, Lee, caused notice of cancellation of such contracts to be served upon the defendant on the ground of alleged default on the part of the defendant. The defendant thereupon obtained from one of the judges of the district court of the county in which the land is situated, an order enjoining all further proceedings for The cancellation of such contracts by notice, and directed that all further proceedings for such cancellation be had in the Dis-trici Court
This action was instituted on or about May 7th, 1923. In his complaint the plaintiff sets forth the contracts, the alleged defaults therein, the service of notice of cancellation, the issuance of the order restraining foreclosure of the contracts; that the defendant is threatening to remove the buildings and improvements on said land and to plant, harvest and remove the crops raised during the year 1923. And the plaintiff prays that judgment be entered terminating said contracts and declaring the same to be void and of no effect; that the defendant be restrained from removing from said land any of the buildings or improvements thereon and from planting, harvesting or threshing any crops thereon or removing any crops therefrom. On May 19th, 1923, the plaintiff, pursuant to notice, applied to one of the .judges of the district in which the land is situated for a temporary restraining order restraining the defendant, during the pendency of the action, from removing any buildings or improvements from said land and from planting, harvesting or threshing any crop thereon. At such hearing affidavits'were submitted by both the plaintiff and the defendant and it appeared from Ihe affidavits submitted by the. defendant that he had already planted crops on said land that year. At the conclusion of the hearing the trial court entered an order restraining the defendant from removing any of the buildings from said land and also from removing or selling one third of the crops raised on the premises and further restraining him from mortgaging or incumbering the remaining two thirds of the crops raised on the premises during the, year 1923. The defendant has appealed from that part of the order which restrains him from removing or selling more than one third of the crops raised on said premises during the year 1923 and from mortgaging or incumbering the remaining two thirds of such crops. No appeal is taken from that part of the order restraining the defendant-from removing the buildings and improvements on the land.
In our opinion the order appealed from must be affirmed. The questions which appellant seeks to raise on this appeal go to the merits of the controversy as regards the title and interest of the parties in the land. In other words, appellant seeks to have the mei’its of the action, that is, the rights of the parties as regards the. land in controversy, de
It is well settled that “a temporary injunction pendente lite is not granted as a matter of right, but the granting or refusal of the same is largely in the discretion of the trial court, and its order' will not be; disturbed except in case of a clear abuse of discretion.” Sand v. Peterson, 30 N. D. 171, 152 N. W. 271. And that “on appeal . . . this court will not pass upon the merits of the main action, but will only review the order appealed from.” Ibid.
“The sole object of an interlocutory injunction is to preserve the subject in controversy in its then condition, and, without determining any question of right, merely to prevent the further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered.” 1 High, Inj. 4th ed. § 4.
And “it is to be constantly borne in mind that in granting temporary relief by interlocutory injunction, courts of equity in no manner anticipate the ultimate determination of the questions of right involved. They merely recognize that a sufficient case has been made out to warrant the preservation of the property or rights in issue in stain quo until a hearing upon the merits, without expressing, and indeed without having the means of forming a final opinion as to such rights. And in order to sustain an injunction for the protection of property pendente lite it is not necessary to decide in favor of the plaintiff upon the merits, nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to an interlocutory injunction, although his right to the relief may ultimately fail.” 1 High, Inj. 4th od. § 5.
Order affirmed.
