Jones v. Boyd

• Decision Date: 31 January 1879
• Court: North Carolina Supreme Court
• Parties: J. R. JONES v. WILSON BOYD.

80 N.C. 258

J. R. JONES

v.WILSON BOYD.

Supreme Court of North Carolina.

January Term, 1879.

MOTION for an Injunction and appointment of a Receiver, heard at Chambers in Asheville on the 10th of August, 1878, before Henry, J.

The facts appear in the opinion. His Honor granted the motion and the defendant appealed.

Mr. J. H. Merrimon, for plaintiff .

Messrs. M. E. Carter and Reade, Busbee & Busbee, for defendant .

SMITH, C. J.

On the 11th of July, 1878, the plaintiff issued his summons demanding specific performance according to the complaint to be filed, and four days thereafter applied to the judge of the district for the appointment of a receiver and for a restraining order. In the affidavit on which the application is based, the plaintiff states that early in the year 1875 he contracted with the defendant to sell him a tract of land containing thirty acres, at the price of five hundred dollars, to be paid in five annual instalments, and to make title when all the purchase money was paid; and that in pursuance of said agreement the defendant executed his five several notes, payable at the end of the successive years thereafter, the last falling due on the 1st of January, 1880.

The plaintiff gave a title bond to the defendant, a copy of which is set out in the course of the subsequent proceedings, the concluding clause of which is in these words: “Now if J. J. R. Jones do make, or cause to be made, a good and sufficient title to the above-named piece of land, when the above-named Wilson Boyd makes his last payment which is to be made on the 1st day of January, 1880, then this obligation to be void and of no effect; otherwise to remain in full force of law.”

No complaint has been filed disclosing the plaintiff's cause of action, but in the summons, in the plaintiff's affidavit and in the statement of the case on the appeal, it is described as an action for specific performance, and the relief asked is an order restraining the defendant from committing waste and spoil, and the appointment of a receiver to take possession of the land. What is transmitted as the case on appeal, is little else than a recapitulation of what is contained in the record, with copies of the conflicting affidavits read on the hearing of the motion, and the order of appointment. If in order to the reversion of an interlocutory decree made pending the suit and auxiliary and incidental only to its main object, it is necessary to eliminate and present the facts apart from the evidence upon which the decree is founded, the appeal could not be sustained. But such has not been the ruling nor the practice in this court in such cases, as is shown by the decision in Heilig v. Stokes, 63 N. C. 612, and in numerous other cases, in which upon the pleadings and evidence the court has assumed and exercised jurisdiction and determined the appeal. But whatever doubt may have previously existed as to the soundness of the distinction drawn in the opinion of the court in Heilig v. Stokes, between “issues of fact” and “questions of fact,” as affecting the appellate power of this court, when that case was decided, it is removed by the express words of the recent constitutional amendment, which enlarges and restores jurisdiction over both, as it was possessed and exercised before the adoption of the constitution of 1868. Without undertaking to define the limits to which our appellate power is carried by this change, it is sufficient to say it embraces the present appeal and requires us to re examine the evidence and to determine the facts as well as the law arising thereon, in revising the subject matter of the appeal.

Under the former system of procedure, this court was invested with authority to review the decrees, final or interlocutory, of the courts of equity and the evidence upon which they were rendered, and in case of reversal to exercise original jurisdiction itself. The case whether upon appeal or reversal was heard upon written and documentary proofs only, according to the well established practice in courts of equity, and consequently this court had before it all the means for arriving at a correct decision which the court below had. Gillis v. Martin, 2 Dev. Eq. 470. In courts of law it was otherwise, and on appeals from them, only errors of law were subject to correction. This distinction must be kept in view in giving effect to the language of the amended constitution.

The order is an...