Opinion
(December Term, 1848.)
1. Where an executor had assented to a legacy of personal property to A. and delivered the property to her, and afterwards obtained an order of court to sell the property for the payment of debts of the testator: Held, that A.'s right to the property was complete at law; that she had a full legal remedy for an injury, and therefore had no right to apply to a court of equity for an injunction to prevent the apprehended trespass.
2. A court of equity will not interfere to prevent a trespass, except where the damage would be irreparable.
CAUSE removed from the Court of Equity of CLEVELAND, at Fall Term, 1845.
Bynum for plaintiff.
Guion for defendants.
The bill was filed at Spring Term, 1844. It alleges that about (259) 1828, John Howell died, leaving a last will, in which the defendants were appointed executors; that soon thereafter they proved the will and qualified; that among other things the will contained a bequest of certain negroes to the plaintiff for her life, remainder to the children of the testator; that soon after they qualified, the executors assented to the legacy and delivered the negroes to the plaintiff, who has had them in her possession ever since.
The bill further alleges that in January, 1844, the defendants, upon a false allegation of debts outstanding against the estate, by an ex parte application to the county court, obtained an order of sale, and were about to take the negroes and sell them, that the plaintiff is old and infirm, and in all probability her estate will determine by her death before an action at law for the injury could be terminated. The prayer is that defendants be enjoined from taking the negroes and selling them.
The defendants answered; a reference was made to ascertain the debts of the testator; exceptions were filed; and the case was set for hearing and removed to this Court for trial, by consent.
The defendants move, in this Court, to dismiss the bill for want of equity.
We think the motion must be allowed.
The assent of the executors vested the legal title in the plaintiff. If the defendants take the negroes and sell them, there is a clear and adequate remedy at law by an action of trespass, trover, or detinue. The death of the plaintiff, pending such action, would not prevent a (260) recovery, by her personal representative, of damages commensurate with the value of her estate and the injury done. So that the damages which the plaintiff seems to apprehend cannot in the proper sense of the word be considered "irreparable," as in the case of ornamental shade trees, the value of which cannot be measured by dollars and cents, or a mine, the value of which cannot be known.
The case presents the naked question, Will a court of equity interfere to prevent a trespass when the damage is not "irreparable"? This Court has never claimed or exercised such a jurisdiction.
The bill must be dismissed with costs, it being a general rule that a plaintiff who files a bill which has no equity must pay the costs.
PER CURIAM. Bill dismissed with costs.
Cited: DuPree v. Williams, 58 N.C. 100; Thompson v. McNair, 62 N.C. 124; Lumber Co. v. Hines, 126 N.C. 256.
(261)