Opinion
(June Term, 1866.)
The rule that in injunction causes all the defendants must answer before a dissolution will be ordered, will not be enforced where the party not answering is not charged with any particular knowledge of the material facts alleged; and more particularly, where no steps have been taken to bring such party into court.
ORIGINAL BILL, praying for an injunction against an ejectment, and for specific performance of a contract in relation to land, and for other relief, filed at Fall Term, 1863, of DAVIE.
Boyden and Furches, for the complainant.
Bragg and Clement, for the defendant.
Upon the coming in of the answer of the defendant, Denton, (40) Bailey, J., at the same term, dissolved the injunction theretofore obtained, and from his order the complainant prayed for and obtained an appeal.
The view taken by the court renders it unnecessary to state the facts in detail.
It did not appear that the defendant, Booe, had been made a party to the proceedings, either by subpoena or by publication.
The equity, which the complainant seeks to establish in this case, is based upon the allegations which he makes in relation to the purchase by the defendant, Denton Ijams, of the land in controversy from A. A. Harbin. The complainant avers that this purchase was made for his benefit, and that the purchaser was to take the title to himself, and to hold it only as a security for the purchase money until he, the complainant, could pay the amount to him. The other defendant is alleged to have been a purchaser with notice, and therefore subject to the same equity that attached to his vendor. In this aspect of the case, it is clear that the complainant can not have the relief which he seeks, unless he can sustain his allegations as to the facts and circumstances attending the purchase by the defendant, Ijams, from A. A. Harbin; Foster v. Jones, 22 N.C. 201. But these allegations are all distinctly and positively denied in the answer of the defendant, Ijams. Such being the case, the usual result of a dissolution of the injunction must follow, unless it can be prevented by the objection that the other defendant, Booe, has not filed an answer to the bill.
The general rule in injunction causes is, that all the parties defendant must answer before motion to dissolve will be entertained. (41) But this rule may be dispensed with under peculiar circumstances. Ashe v. Hale, 40 N.C. 55; Wilson v. Hendricks, 54 N.C. 295. One of the exceptional cases is, where the party not answering is not charged in the bill with any particular knowledge of the material facts alleged, and the party answering is so charged. And more particularly is this so when no steps have been taken to bring the non-answering party into court. Ashe v. Hale, supra. The present case is clearly within this exception. No proper means have been used to bring the defendant, Booe, before the court, and if there had been, he is not charged with a particular knowledge of the facts connected with the purchase by his co-defendant. His answer could do no more than fix him as a purchaser with notice, but could not in any way relieve the plaintiff from the effect of the full, distinct and positive denials of the other defendant.
PER CURIAM. Ordered accordingly.
Cited: Thompson v. McNair, post, 123.