Opinion
(August Term, 1854.)
1. Upon a motion to dissolve an injunction, an allegation in the bill which is evaded and not responded to in the answer is taken to be true.
2. It is no ground for refusing to entertain a motion to dissolve an injunction, that one of the defendants in the bill has not answered, where it appears that such answer, if it had been obtained, could not affect the rights of the party enjoined.
APPEAL from the Court of Equity of HENDERSON, from an order dissolving an injunction, heard before Dick, J., Spring Term, 1854.
N.W. Woodfin, for plaintiff.
J. Baxter, for defendants.
The material allegations in the bill are that the plaintiff, having a debt of about $323.13 on the defendant Folger, was put to much inconvenience about it, and was from the defendant's precarious circumstances, doubtful of being able to save the same; that in order to save his debt he agreed to take a negro girl about eleven years old by the name of Nancy, at the price of $525, out of which sum his own debt should be discharged; and he gave his bond for the residue, to-wit, about $252, due 25 December, 1851. That the negro Nancy was the joint property of the defendant Folger and one Chain Strowed, who lived in South Carolina, but that the title was made to him by the latter, who made a written warranty of soundness except as to a defect in the eyes, they pretending that the title of the slave was in Strowed, and they both joined in repeated assurances to the plaintiff that they were dealing fairly with him, and that the slave was sound except that she was a little near-sighted. The bond for the remainder of the purchase-money, after deducting Folger's debt, was made payable to him on the suggestion of both him and Strowed that it was immaterial to whom it was given. The bill further sets forth that the negro girl Nancy was unsound at the time of the sale, being affected with consumption, and that in about twenty months thereafter she died of that disease; also, that ten days after the sale of the slave to him, having (296) discovered the fraud practiced on him, he advertised in a newspaper of the neighborhood the facts of the case, and cautioned the public against trading for the note given on the occasion. The bill further charges that in order to evade the equitable defence of the plaintiff the bond in question was transferred to the defendant Hendricks after it was due, and as he believes without consideration, and with a full knowledge on the part of Hendricks that the plaintiff set up this defence against it, and it particularly charges that Hendricks had admitted to him that he had seen the advertisement before he took the assignment of the note, and that he only held it as a pledge. That the bond had been sued on at law in Henderson Superior Court, a judgment obtained and execution threatened to be issued. The bill prays for an injunction and for general relief.
The answer of the defendant Folger details the circumstances of the case minutely. It denies that the slave Nancy was unsound at the date of the transaction, or that she died of consumption, but avers that she died of pneumonia, contracted long afterwards; but if in this he should be mistaken, he further avers that he was totally ignorant that she had any ailment or defect but that of the eyes, which was excepted in the bill of sale, and he denies that there was any copartnership or joint ownership in the slave in question between him and Strowed.
The defendant Hendricks put in his answer, the purport of which is sufficiently set forth in the opinion of the Court.
The defendant Strowed filed no answer.
On a motion in the cause to dissolve the injunction, the same was heard upon the bill, and answers filed, and the injunction was ordered to be dissolved. Appeal to the Supreme Court.
The defendant Hendricks claims to be a purchaser (297) for a valuable consideration, and in general terms denies notice of the plaintiff's equity; but the bill avers that the plaintiff had given notice in a newspaper published near the residence of the defendant that the note had been obtained by fraud; and it also avers that the defendant had actually seen this advertisement before the note was assigned to him. To these averments the defendant makes no response, and upon a motion to dissolve an injunction, an allegation in a bill which is evaded and not responded to in the answer is taken to be true. So without reference to the allegation that the assignment was after the note fell due (a direct answer to which is also evaded), we consider the defendant Hendricks as affected with notice, and consequently subject to all equities that the plaintiff is entitled to against the defendant Folger. Thus the matter stands as if the defence was in the name of Folger. He meets directly with a positive denial the allegation that he and the other defendant Strowed were partners or part owners of the slave for which Strowed executed a bill of sale with warranty of soundness. He also meets directly and by a positive denial the allegation of the "scienter," and avers, in response to the bill, that if the negro girl was unsound and did not die of pneumonia but was in fact the subject of consumption, he had, at the time the slave became the property of the plaintiff, no knowledge of the unsoundness and no interest as a part owner. So the plaintiff's equity, as regards these two defendants, is fully met and denied by them.
But the plaintiff insists that the motion to dissolve the injunction ought not to have been entertained, because the other defendant, Strowed, has not answered.
The defendant Hendricks is the party enjoined; he answers and is put in the place of the defendant Folger; he answers and fully denies the equity of the plaintiff, so far as he is concerned; and the question is, upon what ground can the Court refuse to entertain the motion to dissolve the injunction until the defendant Strowed (298) answers? The injunction does not reach him, and the plaintiff could not use his answer against the other two defendants, according to the well-settled rule, "an answer cannot be read against a co-defendant, unless he refers to it by his answer as correct, or is so connected with the answering party as to be bound under the ordinary rules of law by his declarations or admissions." Mitf., 188; Adams Eq., 20. There is no such connection in this case; consequently, if the answer of Strowed was filed, admitting all the allegations of the bill, it could not be used against the defendants Hendricks and Folger, and of course the fact that Strowed has not answered can furnish no ground for refusing to entertain this motion to dissolve the injunction.
There is no error in the order appealed from.
PER CURIAM. Affirmed.
Cited: Evans v. Lovengood, post, 302; Ijames v. Ijames, 62 N.C. 41; Thompson v. McNair, Ib., 123.
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