Arey v. Lemons
| Decision Date | 01 November 1950 |
| Docket Number | No. 311,311 |
| Citation | 232 N.C. 531,61 S.E.2d 596 |
| Parties | AREY et al. v. LEMONS et al. |
| Court | North Carolina Supreme Court |
C. C. Horn and Joseph C. Whisnant, Shelby, for plaintiffs, appellees.
Falls & Falls, Shelby, for defendants, appellants.
Upon an appeal from an order granting or refusing an interlocutory injunction, the Supreme Court may review both the findings of fact and the conclusions of law. Finger v. Rex Spinning Co., 190 N.C. 74, 128 S.E. 467; Coates v. Wilkes, 92 N.C. 376.
The purpose of an interlocutory injunction is to preserve the status quo of the subject matter of the suit until a trial can be had on the merits. Boone v.Boone, 217 N.C. 722, 9 S.E.2d 383; State v. Scott, 182 N.C. 865, 109 S.E. 789; Harrison v. Bray, 92 N.C. 488. For this reason, an interlocutory injunction does not lie to take property out of the possession of one party and place it in the possession of another. Jackson v. Jernigan, 216 N.C. 401, 5 S.E.2d 143; Stevens v. Myers, Mo.App., 73 S.W.2d 334; Spoor-Thompson Mach. Co. v. Bennett Film Laboratories, 105 N. J.Eq. 108, 147 A. 202; Eastern Farms Products v. Wampsville Dairymen's Corporation, 173 Misc. 413, 17 N.Y.S.2d 954. Besides, equity will not undertake by injunction to protect the property rights of a party who has an adequate remedy at law. Merchants Oil Co. v. Mecklenburg County, 212 N.C. 642, 194 S.E. 114. When these rules are applied to the case at bar, it is manifest that the court below erred in awarding injunctive relief to the Arey Oil Company.
The defendants are in the actual and peaceable possession and enjoyment of the property in dispute under claim of right. Yet, the order of the court enjoins them from making further use of such property so as to coerce them to transfer its possession to the Arey Oil Company. Hence, the order disturbs rather than preserves the status quo of the subject matter of the suit.
Moreover, the evidence does not indicate any inadequacy in the legal remedies available to the Arey Oil Company. Whitford v. Bank, 207 N.C. 229, 176 S.E. 740; Kistler v. Weaver, 135 N.C. 388, 47 S.E. 478; Wilson v. Respass, 86 N.C. 112; Hettrick v. Page, 82 N.C. 65; Baxter v. Baxter, 77 N.C. 118; Jordan v. Lanier, 73 N.C. 90; Howell v. Howell, 40 N.C. 258.
The provision of the injunction relating to the filling station is improper for another reason. To obtain an interlocutory injunction, a plaintiff must make out at least a prima facie showing of a right to the final relief demanded by him. Plott v. Com'rs., 187 N.C. 125, 121 S.E. 190; Gray v. Central Warehouse Co., 181 N.C. 166, 106 S.E. 657; Jones v. Lassiter, 169 N.C. 750, 86 S.E. 710; Newton v. Brown, 134 N.C. 439, 46 S.E. 994.
The Arey Oil Company predicates its demand for a final judgment for the possession of the filling station during the remainder of its supposed term upon the premise that Lemons and wife have forfeited their right of occupancy under their purported sublease through breach of the condition of the writing of November 19 1945, requiring them to handle the petroleum products of the Arey Oil Company to the exclusion of similar merchandise marketed by any other person, firm, or corporation.
The writing of November 19, 1945, is a somewhat startling document. According to its language, the parties to it entered into a single transaction whereby Lemons and wife, as owners of the fee, leased the filling station rent-free to the Arey Oil Company for a term of ten years, and the Arey Oil Company, as lessee, subleased the same porperty rent-free to Lemons and wife for the same term. This being the case, it may be argued with much persuasiveness that any rights which the Arey Oil Company hoped to acquire in the filing station by the transaction died a-borning through the merger of the lease and sublease in the fee. See: 51 C.J.S., Landlord and Tenant, § 96. We by-pass this intriguing question without decision, for its determination is not necessary to the solution of our present problem.
It is clear that the various provisions of the writing of November 19, 1945, are...
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