Allen v. Pearce

• Decision Date: 30 June 1862
• Citation: 6 Jones 309,59 N.C. 309
• Parties: JAMES P. ALLEN v. JOHN PEARCE and others.
• Court: North Carolina Supreme Court

6 Jones Eq. 309

59 N.C. 309

JAMES P. ALLEN

v.JOHN PEARCE and others.

Supreme Court of North Carolina.

June Term, 1862.

Where the obligee, in a bond for title, paid a material portion of the purchase-money down, and gave a note for the residue, and entered into possession and continued it up to the time of a suit in ejectment by the obligor, it was held to be a strong case for the court of equity to interfere by injunction, to prevent the obligee from being turned out, under the execution, in the suit at law.

Where, to a bill for an injunction, the defendant answers lightly and evasively to material allegations, the injunction will not be dissolved.

Where new matter is introduced in an answer, in avoidance of the plaintiff's equity, it will not be considered on a motion to dissolve.

APPEAL from an interlocutory order of the Court of Equity of Wake county, ordering the dissolution of an injunction, BAILEY, J., presiding.

The defendant, John Pearce, on the 15th of June, 1857, entered into a penal bond payable to the plaintiff, James P. Allen, which was conditioned that “if the said J. P. Allen shall fully comply with the contract, in the above premises, and pay to the said John Pearce the remainder of the purchase-money, with interest and necessary costs of these transactions, which is $175 10, seventy dollars of which is this day paid in cash, and the receipt whereof is hereby acknowledged, and the remainder is $107 10, with interest from the 7th, then the said John Pearce is to make him a good and lawful title to the above lands.” The plaintiff immediately went into possession of the premises, and has occupied them ever since.

Before this suit was brought, Pearce falling into pecuniary difficulties, conveyed the land in question to one Geo. W. Thompson, as trustee, for the payment of his debts, and on 29th day of September, 1861, he sold the same at public auction to the defendant, Marcellus Pearce, and made him a deed in fee simple for the same. The plaintiff alleges that he attended at this sale by the trustee, and made objection thereto. Also that the defendant, Marcellus, had full knowledge of the equitable claim of the plaintiff, and so had the said G. W. Thompson, when the deed of trust was made to him.

The plaintiff alleges that before this sale, and before this suit was brought, but after the money fell due, he tendered the purchase-money in full, and demanded a deed in fee simple from the said Pearce, and the other defendants claiming under him, which was refused.

The plaintiff further shows, that the defendant, Marcellus Pearce, sued him in ejectment and obtained a judgment by default, and is threatening to turn him out of the possession. The prayer is for an injunction (which issued) and for an account for the ascertainment of the balance of the purchase-money, and for a conveyance to him of the legal title on the payment thereof, also for general relief.

The defendants admit the bond to make title to plaintiff; they also admit that the...