Opinion
(Spring Riding, 1806.)
1. Where a line called for is "thence 50 degrees east down the creek," the creek is the beginning.
2. An injunction shall not be issued against a judgment for costs, if the plaintiff at law has incurred them by bringing an ejectment, when he should have resorted to equity.
IN May, 1795, Auldridge purchased a tract of land from Turner, running to a corner, and from thence South 50 E. down the creek to a white oak, at the mouth of a branch; thence, etc. Turner afterwards sold to Smith the land between the creek and the said line, South 50 E., not saying down the creek. Auldridge got possession of the land between the creek and this line, saying the creek was the boundary of his land, as well as of the patent under which he claimed; and Smith sued him in this action of ejectment.
charged that the creek was the boundary, and included within the bounds of Auldridge's deed the land in controversy.
Smith proved on the trial many admissions of Auldridge, after his purchase, that the said line, South 50 E., was his boundary; (383) and many offers on his part to purchase the land between that and the creek. Upon this evidence after a verdict for the defendant, Smith filed his bill, stating a mistake in drawing the deed, and that the said line was the line shown to him at the time of the purchase, and understood it to be the line purchased to. It prayed an injunction against the costs of the action in ejectment until the court of equity should make further order upon this bill.
The plaintiff knew of Auldridge's claim, and has taken a wrong mode of obtaining redress. He should not have brought an ejectment. The costs have accrued in consequence of this wrong step, which is imputable to him. It is said the defendant was wrong in setting up a defense for the lands claimed by the plaintiff, as he knew he, the defendant, had not purchased them. Plaintiff, however, had every reason to believe he would set it up, because he had taken possession and kept it. The first departure from correctness was on the part of the plaintiff in this bill, and therefore I will not screen him, by an injunction, from the costs incurred thereby.
Injunction refused.
NOTE. — On the first point, see the references in the note to Person v. Roundtree, 1 N.C. 69; S. c., 2 N.C. 378.
Cited: Rogers v. Mabe, 15 N.C. 194; Power v. Savage, 170 N.C. 629.