Opinion
(June Term, 1861.)
In the case of a common injunction, where the answer is full, and the plaintiff fails to prove his allegations by any admission in the answer, being without proof, his injunction must be dissolved.
APPEAL from a decretal order made in the Court of Equity of CUMBERLAND.
The plaintiff alleges in his bill that on 1 November, 1851, he executed to defendant's intestate, James Kelly, a bond for $500, payable one day after date; that he did not owe Kelly that sum of money, but that the latter had become his security for the purchase of a tract of land, and that this bond was given to cover the contingency of his (201) having to pay for the land; that a few days afterwards, he executed a deed of trust to secure the payment of the bond, and had the same duly registered; that not long afterwards, plaintiff and the said Kelly had a settlement, in which it was agreed that he, Kelly, should keep the land and pay the amount for which he was liable as surety, and that he should give up or cancel the bond for $500; that accordingly the bond in question was given up to the plaintiff, that, being the son-in-law of the intestate, Kelly, by invitation from him, he removed with his family to his house, and remained there for about a year, and then removed to another place; that the furniture which he carried with him to Kelly's house remained thereafter his family left, and that the bond for $500 was also left there in an old pine desk, with other papers of the plaintiff; that Kelly has since died, and the defendant having been appointed administrator of his estate, has brought suit against him at law, and having obtained a judgment thereon, has taken out execution and threatens to sell the plaintiff's property. The prayer is for an injunction and for a surrender of the bond, or a release from the judgment at law, and for general relief.
The defendant, in his answer, says that among the valuable papers belonging to the estate of his intestate, he found the bond of $500, which he urged defendant to pay, but which he abruptly refused to do, simply denying that he owed Kelly anything, without in any manner explaining or accounting for the existence of the bond; that he found the said bond carefully placed away in a trunk, wrapped up in a bundle of other papers, among which was a note on other persons for $1,000; that he found in an old cheese box a large bundle of papers which he did not consider valuable, but he did not find any of the plaintiff's papers, either there or elsewhere about the intestate's residence, and he has no recollection of ever having seen about the house, or elsewhere, the pine desk described in plaintiff's bill. The defendant does not profess to know of his own knowledge anything of the dealings between (202) the plaintiff and his intestate, but from the foregoing circumstances, and from what he has heard from his intestate, he feels justified in denying the plaintiff's allegations, and holds him to strict proof.
Upon the coming in of the answer, the Court ordered the injunction to be dissolved, from which plaintiff prayed an appeal to this Court.
W. McL. McKay, for the plaintiff.
Leitch, for the defendant.
The equity of the plaintiff is put on the ground that the note in question was satisfied in the lifetime of Kelly, the intestate of the defendant; that on a settlement between the plaintiff and Kelly, the note was surrendered up to the plaintiff, and that he neglected to cancel or destroy it, and left it among his other papers at the house of Kelly (who was his father-in-law), "in an old pine desk."
The defendant does not confess the equity of the bill, but denies all of the facts upon which it rests, and says that, according to his belief, they are not true, and as the ground of this belief, among other things, he avers that the note was found by him, at the death of the intestate, carefully wrapped up with other valuable papers and placed away in a trunk, and that there were no papers of the plaintiff found in the house of the intestate, and no "old pine desk" like the one described in the bill. So, if the note ever had been surrendered to the plaintiff, his intestate must have purloined it and put it among his valuable papers, which the defendant does not believe to be true, and, in confirmation of his belief, he avers that after the death of his intestate, he urged complainant to pay the note, "which he abruptly refused to do, simply denying that he owed Kelly anything, without in any manner explaining or accounting for the existence of the note."
The answer being full, and the plaintiff having failed to prove his allegations by an admission in the answer, he is without proof, (203) and his injunction is gone. Capehart v. Mhoon, 45 N.C. 37.
There is no error in the decretal order dissolving the injunction.
PER CURIAM. Affirmed.
Cited: Jones v. McKenzie, post, 206; Blackwell v. McElwee, 94 N.C. 429.