The bill alleges that, in the month of June, 1855, the plaintiff bought a tract of land, lying in Watauga county, containing about two hundred acres, from the defendant, and that the same had been granted to one Dobson, through whom the defendant claims title; that the plaintiff gave three several notes for the purchase-money, payable at different dates, and that the defendant made him (plaintiff) a deed in fee for the premises, with full covenants of seizin and warranty of title; that the plaintiff went into possession and made valuable improvements on the land; that the said notes having become *Page 452 due, the defendant brought suit thereon, and having obtained judgments in a court of law, has taken out execution, and by force thereof has collected one of these judgments, and threatens to enforce the collection of the others, which it is the object of this bill to restrain by an injunction. The plaintiff alleges that he has lately been informed, that one John E. Brown is claiming title to the land, conveyed by the defendant, under a grant to one Cathcart, prior in date to that to Dobson, and has brought several actions of ejectment, which are now pending in the Superior Court of Watauga county, for the purpose of establishing his title to the land in controversy, and to a large extent of adjoining lands; and for the purpose of establishing the boundary lines of the grant to Cathcart; that surveys have lately been made by orders made in these suits, which have been so run as to include the land conveyed by defendant to the plaintiff, and that "if the boundary of the Cathcart grant, as run in said surveys, is its true boundary, as in the present state of the controversy it seems to be, then the title, which the defendant has conveyed, is wholly worthless," and the said notes were executed under a total mistake of facts, both on his part and on that of the defendant, and are without consideration; that the defendant is embarrassed with heavy debts, so as to render it very doubtful, whether the plaintiff could, in the event of the land being taken by such superior title, obtain any redress by suit at law on the covenants. The prayer is simply for an injunction and for general relief.
The defendant answered, but as the opinion of this Court proceeds upon the plaintiff's bill alone, it is not deemed requisite to state the contents of such answer.
On the coming in of the answer, the defendant moved to dissolve the injunction, which was refused by his Honor, and the defendant appealed. The relief by injunction does not per se constitute an equity; except when it is to prevent torts; as, to stay waste, destructive trespass, and the like; but is ancillary to some primary equity which the bill seeks to enforce; in aid of which, the writ of injunction restrains proceedings in the courts of common law, until such primary equity can be established; as, to stay execution on a judgment at law, until an opposing equity can be set up. It follows that to entitle a plaintiff to this ancillary relief, the bill must contain matter sufficient to make out some primary equity, in aid of which the injunction is asked for. This really seems a very plain proposition; and yet, although it has been announced time and again by this Court, it is frequently not attended to on the circuit.
The present is an instance of it. The bill does not contain matter sufficient to make out any primary equity, in aid of which the injunction is asked for, but the object is to stay execution on a judgment at law, as an independent equity; without reference to any primary equity, or to any further proceeding in this Court.
By reason of this fatal defect of the bill, the injunction was improvidently granted, and the decretal order must be reversed, and the injunction be dissolved irrespective of any matter set out in the answer.
The bill alleges that in pursuance of a contract the defendant executed to the plaintiff a deed in fee simple for a tract of land, "with full covenants for seizin and warranty," under which he took possession, and has made improvements; in consideration whereof, the plaintiff executed to the defendant three bonds for the purchase-money; upon which, judgments at law have been taken, and one of them has been satisfied. It further alleges, that there is ground to apprehend that the title of the defendant is defective by reason of a grant to one Cathcart, which it is supposed covers the land, and is older than the grant under which the defendant claims, and that the defendant "is embarrassed with heavy debts, so as to render it doubtful whether your orator could obtain redress in an *Page 454 action at law on the covenants, in the event of his losing the land." The prayer is, that the defendant be enjoined from collecting the two judgments, which are unsatisfied, "until the further order of this Court; and for such other and further relief as the nature of the case may require."
What primary equity does the bill seek to establish? It lays the foundation for none. There is no averment of an offer to rescind the contract and reconvey, because of the defect in the title, or of a willingness on the part of the plaintiff to do so, and without it, the prayer for general relief is unmeaning. No further proceeding seems to be contemplated in this Court except the injunction; no other order is asked for; there is not even an intimation that the plaintiff wishes a reference in respect to the title, or a suggestion of what action is to be taken in regard to it, supposing the plaintiff is entitled to have such an order after the contract has been executed by his accepting a conveyance, and relying on the covenants of seizin and warranty. Nor is there an averment, that the plaintiff has instituted a suit at law, or intends to do so, upon the covenant of seizin, so as to try, in the courts of common law, the validity of the defendant's title. In short, without laying the foundation for any further action in this Court; and without proposing to proceed in any other court, the plaintiff, being in possession under a deed with full covenants, desires to hold the land without payingfor it! and to enjoin the collection of the purchase-money, for an indefinite time, or until those claiming under one Cathcart, who are not parties to this proceeding, and over whom the Court has no control, may see proper to institute an action of ejectment! It is not according to the course of this Court, to allow litigation to be commenced and left in a condition, indefinite, unfinished, and dependant upon the action of strangers. This opinion will be certified.
PER CURIAM, Decree accordingly. *Page 455