Opinion
(Filed 5 March, 1930.)
Injunctions D b — Where record does not show that plaintiff's action is invalid continuance on ground of irreparable injury will be upheld.
Where the defendant sets up that the plaintiff's cause of action is invalid because a parol trust in favor of a grantor in a deed cannot be created by oral evidence, and it does not appear from the record that the alleged trust is to be established by oral evidence, and the judgment recites that a continuance of the restraining order will not irreparably injure the defendant and that a dissolution might cause great injury to the plaintiff, the judgment continuing the order to the hearing will be affirmed.
APPEAL by defendant from an order of Nunn, J., at Chambers, on 26 August, 1929, continuing a restraining order to the hearing. From CRAVEN. Affirmed.
Moore Dunn and Warren Warren for plaintiffs.
J. F. Duncan and Ward Ward for defendant.
It is alleged in the complaint that in the course of negotiations between W. B. Blades and the defendant the parties agreed that the plaintiffs should convey to the defendant a certain lot in the city of New Bern for the purpose of securing the payment of $20,000 with interest, and that upon payment of this amount the defendant should reconvey the lot to the feme plaintiff. The complaint and the answer raise issues of fact which, nothing else appearing, would require the intervention of a jury; but the defendant alleges that the plaintiffs' cause of action is invalid because a parol trust cannot be created by agreement of the parties in favor of the grantors in the deed or either of them. We may say without debating this question that it does not necessarily appear from the record that the creation of the alleged trust is to be established, if at all, by oral testimony; and upon the facts as disclosed by the record we find no sufficient cause for reversing the judgment. The judgment contains the recital that a continuance of the restraining order will not irreparably harm the defendant and that a dissolution of it might cause great injury to the plaintiff.
Judgment affirmed.