Williams v. Brown., 37 S.E. 86

Williams v. Brown.

37 S.E. 86 | N.C. | 1900

This is an action in which the plaintiff asks to have the defendant enjoined from foreclosing a mortgage to secure a debt of $78, and to restrain the defendant from threatening to enjoin him from selling timber off the mortgaged land. The plaintiff alleges two grounds upon which he puts his right to this injunction. The first is that the defendant is the assignee of the mortgage, but the assignment has not been registered; and the other is that defendant threatens to stop him from selling timber off the mortgaged premises unless he will pay both the mortgage debt and also a docketed judgment which defendant holds on plaintiff; that he is (52) unable to pay either unless the defendant will let him sell timber off the mortgaged land; that, if the defendant will let him do this, he can sell the growing timber on said land for $80, and pay off the mortgage debt; that he has proposed to the defendant that if he will assign the mortgage debt to a friend of his, and agree not to interfere with his selling the timber off said land, said friend will pay him the amount of the mortgage debt, but the defendant refuses to do this. The amount of the docketed judgment is not stated, and it was admitted on the hearing by the plaintiff on the trial below, and so appears on the transcript of record, that the assignment of said mortgage to defendant was in writing, and conveyed the legal title to the defendant. It is also stated that plaintiff's land was not worth more than $1,000, and he claimed a homestead thereon. Upon this state of facts we are unable to see the plaintiff's right to the injunction prayed for. Of course, the plaintiff has the right to pay the defendant the mortgage debt, and thereby discharge the mortgage lien on the land. This he does not offer to do, but asks the Court to enjoin the defendant from foreclosing his mortgage because he will not agree to assign it to a friend of the plaintiff. This the Court can not do. The plaintiff's other ground is equally untenable. The Court can not enjoin the defendant from talking, nor from threatening to enjoin the plaintiff. This would be to enjoin the defendant from enjoining the plaintiff, and we think this would be carrying the injunction business a little too far. The attention of the Court was *34 called to Jones v. Britton, 102 N.C. 166. The facts in the case before us do not make it necessary to review that case; but it will be observed that Jones v. Britton was by a divided Court, there being two dissenting opinions filed, while Judge Shepherd filed a concurring opinion, which must be given (53) the weight of the opinion of the Court, as he held the balance of power; Chief Justice SMITH agreeing with Justice MERRIMON, who wrote the leading opinion, and Justices AVERY and DAVIS dissenting from the opinion of Justice MERRIMON, concurred in by Chief Justice SMITH. Therefore that case could not be considered as authority further than the rule laid down in the concurring opinion of Justice SHEPHERD. We feel justified in saying this much, as that case was cited on the argument, but we do not think we would be justified in saying more than this in considering this appeal.

The judgment is affirmed.

Cited: Morton v. Lumber Co., 144 N.C. 34.