Ponton v. McAdoo

71 N.C. 101 | N.C. | 1874

Reade,,J.

Th% application being fora special injunction and the property in custodia legis, the Court will not let go the property and allow the same to be sold, if there is a probability that the merits are with the plaintiff notwithstanding the denial in the answer. But here there is no denial in the answer, the material facts are admitted. Heileg v. Stokes, 63 N. C. R., 612; Jarman v. Saunders, 64 N. C. R., 368; Craycroff v. Morehead and wife, 67 N. C. R., 422; Brown, Daniel & Co., v. Hawkins, 65 N. C. R., 645.

Upon this ground therefore, we sustain the ruling of his Honor in refusing to dissolve the injunction.

It may be premature to say, and yet it may shorten litigation, that it is manifest that the mortgage was given under a mistake both of law and fact. It was a mutual mistake of both parties, in producing which the defendant Scott was the active agent. It was a mistake which no amount of diligence or eantion on the part of the plaintiff could have avoided; for as alleged by defendant, it was a mistake both of law and fact, common to business men, lawyers and Judges. This makes a clear case for relief. 1 Story’s Eq., secs. 119, 120, and note; Adams’ Eq., 191; 1 Story’s Eq., secs. 29, 134.

The well prepared brief of plaintiff’s counsel, has made our task an easy one.

There is no error. This will be certified to the end, &c.

Pee CuRUM. Judgment affirmed.