Council v. Rivers

• Decision Date: 31 January 1871
• Citation: 65 N.C. 54
• Court: North Carolina Supreme Court
• Parties: J. W. COUNCIL, C. M. E. v. JAMES G. RIVERS and others.

65 N.C. 54

J. W. COUNCIL, C. M. E.

v.JAMES G. RIVERS and others.

Supreme Court of North Carolina.

January Term, 1871.

A civil action to recover the amount of a bond given for the purchase of a tract of land sold by the Clerk and Master under an order of the late Court of Equity, will not be sustained, because the Superior Court has, under the present system, succeeded to the jurisdiction of the Court of Equity and has plenary power, by an order in the cause, to compel the purchaser to pay such a sum as the Court may, under the circumstances, deem right and proper.

The objection that another action can not be sustained, because the Court can give the desired relief by orders in a cause still pending, though not taken in the Superior Court by demurrer or otherwise, may be taken ore tenus in the Supreme Court, or the Court may take it mero motu to prevent multiplicity of suits and the accumulation of costs but in such case the action will be dismissed without costs.

The cases of Mason v. Miles, 63, N. C. Rep. 564, and Rogers v. Holt, Phil. Eq. 108, cited and approved.

This was a civil action brought to recover the amount of a bond given in January, 1867, by the defendants to the plaintiff, as Clerk and Master, for the purchase money of a tract of land sold under an order of the Court of Equity, for the County of Watauga. The defendants demurred to the complaint and assigned several grounds therefor, but did not assign for cause that the action was unnecessary because full relief might be given by orders in the suit in which the sale was made and confirmed. The demurrer was overruled at the Fall Term, 1870, of the Superior Court for Watauga County, by his Honor Judge Cloud, and a judgment given for the plaintiff, from which the defendants appealed.

Folk for the defendants .

Malone for the plaintiff .

PEARSON, C. J.

“It is a well settled principle of equity, that when a person can have adequate relief by an order in a cause pending in the same Court, he shall not be allowed to seek his remedy by a separate suit.” Mason v. Miles, 63 N. C. 564.

“These cases assert the power of the Court of Equity upon petition for the sale of lands for the benefit of infants to compel the purchaser by orders made in the cause, to perform specifically his contract, &c. With such plenary power over the subject, we cannot doubt that the Court of Equity for Alamance, can by proper orders to be made in the suit, now pending there, compel the purchaser of the...