3 N.C. 382 | Sup. Ct. N.C. | 1806
Lead Opinion
charged that the creek was the boundary, and included within the bounds of Auldridge's deed the land in controversy.
Smith proved on the trial many admissions of Auldridge, after his purchase, that the said line, South 50 E., was his boundary; (383) and many offers on his part to purchase the land between that and the creek. Upon this evidence after a verdict for the defendant, Smith filed his bill, stating a mistake in drawing the deed, and that the *335 said line was the line shown to him at the time of the purchase, and understood it to be the line purchased to. It prayed an injunction against the costs of the action in ejectment until the court of equity should make further order upon this bill.
Addendum
The plaintiff knew of Auldridge's claim, and has taken a wrong mode of obtaining redress. He should not have brought an ejectment. The costs have accrued in consequence of this wrong step, which is imputable to him. It is said the defendant was wrong in setting up a defense for the lands claimed by the plaintiff, as he knew he, the defendant, had not purchased them. Plaintiff, however, had every reason to believe he would set it up, because he had taken possession and kept it. The first departure from correctness was on the part of the plaintiff in this bill, and therefore I will not screen him, by an injunction, from the costs incurred thereby.
Injunction refused.
NOTE. — On the first point, see the references in the note toPerson v. Roundtree,
Cited: Rogers v. Mabe,
