Summary
In Parker v. Grammer, 62 N.C. 28, it was held: "Where there is reason to apprehend that the subject of the controversy will be destroyed or removed or otherwise disposed of by the defendant, pending this suit, so that the complainant may lose the fruit of his recovery or be hindered or delayed in obtaining it, the Court will secure the fund by sequestration and injunction until the main equities are adjudicated in the hearing."
Summary of this case from Proctor v. Fertilizer WorksOpinion
(June Term, 1866.)
Where there is reason to apprehend that the subject of a controversy in equity will be destroyed or removed, or otherwise disposed of by the defendant, pending the suit, so that the complainant may lose the fruit of his recovery, or be hindered and delayed in obtaining it, the court, in aid of the primary equity, will secure the fund by the writ of sequestration, or the writs of sequestration and injunction, until the main equity is adjudicated at the hearing of the cause.
ORIGINAL BILL, for an account of a partnership, etc., filed to Spring Term, 1866, of GATES. Upon the coming in of the answer at that term a motion was made to dissolve an injunction theretofore obtained. Barnes, J., having disallowed the same, the defendant appealed.
Smith and Yeates, for the complainant.
Peebles, for the defendant
The bill stated that in March, 1865, a partnership had been formed between the parties, for the purpose of trading in cotton. By its terms complainant was to furnish the money, and the defendant was to buy the cotton and deliver it over for sale to the complainant, (29) who was to account for the proceeds. The business lasted until March, 1866, and whilst it was going on (in March, 1865), the defendant purchased twenty-four bales of cotton, weighing some ten thousand pounds, which has been in his possession since May, 1865, and which he has refused to turn over to the complainant, according to the terms of the partnership; although the latter has offered to execute a bond to him to secure his share of the proceeds. That the defendant is in humble circumstances, has sold about one thousand pounds of the cotton and applied the proceeds to his own use, and has declared his intention to sell the remainder thereof and put the money in his wife's hands, etc. The prayer of the bill was for an account, and meanwhile for writs of injunction, sequestration, etc.
By the answer the right of the complainant to the cotton in question was denied, and a right in the defendant to dispose of it asserted. A detailed statement was given as to the connection between the parties. In the course of it some of the allegations of the bill were denied, others were admitted, and a full statement of other facts and circumstances made, and relied upon to avoid the conclusions in the bill.
The view taken in the opinion of the court renders it unnecessary to report the contents of the pleadings more fully.
Where there is reason to apprehend that the subject of a controversy in equity will be destroyed, or removed, or otherwise disposed of by the defendant, pending the suit, so that the complainant may lose the fruit of his recovery, or be hindered and delayed in obtaining it, the court, in aid of the primary equity, will secure the fund (30) by the writ of sequestration, or the writs of sequestration and injunction, until the main equity is adjudicated at the hearing of the cause.
These writs are extraordinary process, and to sustain them, on a motion to dissolve the injunction and remove the sequestration, the court must be satisfied: 1st, that the complainant does not sue in a mere spirit of litigation, and seek to set up an unfounded claim, but has "probable cause," and may at the hearing be able to establish his primary equity; 2d, that its extraordinary process is not asked for simply to vex and embarrass the defendant, but because there is reasonable ground for apprehension in regard to the security of the fund pending the litigation.
At this stage of the proceedings there is nothing before the court but the bill, answer and exhibits; and treating the bill as an affidavit in support of the complainant's allegations, the court, upon that, in connection with the answer and exhibits, is taking the whole matter together to decide the question of probable cause in regard to the primary equity, and the question of a reasonable apprehension as to the security of the fund. McDaniel v. Stoker, 40 N.C. 274.
These principles are settled, and so fully sustain the order appealed from that we can account for the appeal only by supposing that the distinction between cases of special injunction and sequestration, like the one before us, and cases of the common injunction to prevent a party who has obtained a judgment at law from suing out execution (where the rule is, the injunction will be dissolved on the coming in of the answer, unless the equity be confessed or the answer be insufficient or evasive, see Capehart v. Mhoon, 45 N.C. 30), was not adverted to.
How the facts may be declared to be at the hearing of the cause will depend on the proofs. It is sufficient to say that, as they now appear to be upon the bill and answer, we are satisfied that the (31) complainant has probable cause in support of his equity, and that there is reasonable ground to apprehend that the defendant, unless restrained, inasmuch as he sets up an exclusive claim to the cotton, would remove and dispose of it in violation of the agreement alleged by the complainant, whereby the latter would be hindered and delayed in having the decree enforced, should the case be decided in his favor. We refrain from entering into any discussion of the facts, in order to have the matter open until the cause is brought on for hearing.
In the meantime the parties may enter into such an arrangement as their common interests suggest, in order to have the cotton sold at the present high prices, and the proceeds of sale held subject to the final decree.
PER CURIAM. Decretal order affirmed.
Cited: Reynolds v. McKenzie, post, 57; Blossom v. Van Amringe, post, 135; Elliott v. Newman, 92 N.C. 523; McCless v. Meekins, 117 N.C. 36; Mfg. Co. v. Summers, 143 N.C. 106; Zeiger v. Stephenson, 153 N.C. 530.