57 W. Va. 285 | W. Va. | 1905
Martha Marcum ñled a bill in chancery in Mingo county against G-. D. Marcum stating that she owned a certain tract of land, and that the defendant was unlawfully cutting timber standing upon it, and would continue so to do until the land would be denuded of its timber, and that the timber constituted the chief value of the land, and that the defendant was insolvent, and praying that the defendant be enjoined from cutting and removing the timber. The defendant answered denying his insolvency, and setting up a contract with a former owner of the land by which he engaged to cut and sell the timber. Affidavits bearing only on the character of such contract were filed, and on hearing, the injunction, which had been granted, was dissolved and the bill dismissed, and the plaintiff appeals.
There is no controversy of title or boundary of land in the bill. The bill presents a case for equity jurisdiction in stating good title and the defendant’s insolvency, as insolvency makes the cutting of timber irreparable damage; but the answer denies such insolvency, and there is no proof of it, and this debars the plaintiff from relief in equity, according to numerous decisions in such a case. They hold that if the party is solvent, action at law for'damages gives full and
Therefore, we affirm the decree, without prejudice to any action at law.
Affirmed.