The case was as follows: (312)
By an original bill filed 25 August, 1844, it is charged that the defendant, William Davidson, was the owner of several tracts of land in Mecklenburg County, and particularly two tracts called, the one, the Williams Gold Mine, and the other, the Dunn and the Alexander Gold Mine Tract, and that, by deed bearing date 1 February, 1833, he conveyed the said lands to Joseph Curtis, James N. Hyde and Harry F. Talmadge; and *Page 246 the said Curtis, Hyde and Talmadge, on 4 April, 1833, conveyed the same to an incorporated gold mining company, called the President and Directors of the Franklin Gold Mining Company, who entered into possession, and opened and worked certain gold mines thereon, and for that purpose erected thereon a steam engine and other machinery; and that the said William Davidson was a member of the company, and the manager of its mining operations. The bill then states that the corporation became indebted to the plaintiffs in the sum of $6,500.11, for which they obtained judgment in an action at law, and sued out execution, under which the plaintiffs became the purchasers of the said lands, and the sheriff conveyed the same to them on 28 January, 1839. The bill further proceeds thus: "Your orators further shew that, at the time of the sale, William Davidson was in possession of the premises as aforesaid, and that he has kept possession thereof in defiance of your orators, and used the same for his own individual purposes ever since; and that your orators have not as yet taken any steps to eject the said William by an action at law, hoping and believing that some arrangement would be made, either by the said company or some member thereof, to pay the debt to your orators, and take a transfer of their right under the sale, in which expectation they are disappointed, and in consequence they have now to look to the property solely for indemnity." The bill then states that Wm. Davidson had then recently discovered a very rich vein of gold ore on the Dunn and Alexander tract, and had opened it and raised a large quantity of ore, and was still doing so, and grinding it with (313) the steam mill, and appropriating the proceeds to his private uses; and that the said Davidson was insolvent and not able to answer to the plaintiffs their damages therefor. The prayer is for a discovery of the quantity and value of the gold made by the defendant, and that an account may be taken between the parties, and a decree made for the amount that may appear to be due to the plaintiffs, and that the defendant may be enjoined from "using said property or any portion thereof, and from moving away any gold ore that he has taken out of the Dunn and Alexander mine as aforesaid, and for general relief."
Upon the bill and usual affidavit, an injunction was awarded by a Judge in vacation, as prayed for.
By a supplemental bill, filed 3 September, 1841, the plaintiffs charge that, upon notice of the filing of their original bill and of the award of an injunction, the defendant, William Davidson, and his single daughter, Sarah Davidson, who was *Page 247 living with him, took, in the name of the said Sarah, a lease for the Dunn and Alexander mine for the term of two years from one Jane Dunn, who had no title whatever thereto, and then let one David Glenn into possession with William Davidson, and that they were working the mine on account of William Davidson, as before, or on the joint account of him and his daughter. The bill charges that the giving and accepting of the lease was by collusion between all the said parties, and with the view of evading the injunction that had been issued on the original bill; and that neither of the said persons is able to pay any recovery the plaintiffs might effect in an action at law; and, therefore, that the injury will be irreparable to the plaintiffs, unless the operations of the defendants should be stopped by an injunction; which the bill prays for accordingly.
Thereupon, an injunction was granted against all the parties, restraining them from "further operations on the mines and land in the bill described, and from removing any of the ore already taken out of the mine"; and there was a further order that the sheriff should seize into his possession the said ore, and keep the same from waste, unless the plaintiffs and William Davidson should agree as to (314) the terms on which the ore should be worked up, and the proceeds divided; in which case the sheriff was authorized to deliver the ore accordingly.
The defendants answered on 30 August, 1844. William Davidson admits that he was once the owner of the lands in question. But he says that, shortly previous to the sale and conveyance to Curtis, Hyde and Talmadge, as mentioned in the bill, he assigned and conveyed those lands, and all his other property to Washington Morrison as a trustee, in trust, to secure and pay certain debts in the deed mentioned, and more particularly a very large debt which he, Davidson, then owed to the Bank of New Bern, and for which the plaintiff Irwin, was his surety; that, at the time of the execution of the assignment, it was understood and informally agreed by the creditors and trustee that he, Davidson, might effect sales of the estate, and especially of the gold mines, as he might deem to the best advantage, provided that the trustee should approve the contracts, and that the purchase-moneys should be paid to the trustee, so that the same should be duly applied to the satisfaction of the debts. He states that, under that authority, he contracted with Curtis, Hyde and Talmadge (who were associated with others with a view to become legally incorporated as the Granklin Gold Mining Company) for the sale of the *Page 248 land and mines in question, at the price of $25,000 in cash, payable in certain installments, and the further amount of $10,000 in stock of the corporation, when it should be recognized; that he communicated to his vendees the state of the title before the sale, and that they were satisfied therewith, and understood that they could not get the legal title unless the trustee should approve of the contract, and then, not until they should have paid to him the purchase-money; that Morrison did approve of and confirm the sale, and that he received, at various times, payments on account of it, amounting, in the whole, to $20,000, but that the remaining $5,000 of the purchase-money has never been paid, and is still due with the interest thereon, nor did any certificate of stock ever issue to him; that the corporation, in fact, consisted (315) of the same association of persons, with whom he contracted, with the addition of himself; and that Curtis, Hyde and Talmadge conveyed to the corporation, with the full understanding that the corporation was to make the residue of the payments for the purchase-money. The answer states that all the foregoing circumstances were well known to the plaintiff, Irwin, at, or shortly after they occurred; and that, at the time of the sheriff's sale, notice was distinctly and publicly given that a large sum remained unpaid of the purchase-money, and that the legal title of the premises would not be conveyed until payment thereof, nor possession given until the balance should be paid or realized out of the property; and both of the plaintiffs fully knew all the said facts and circumstances. The answer admits that this defendant was a stockholder and manager of the corporation, and that, after the sheriff's sale, the operations of the company ceased, and that he has continued in possession ever since, for his own use, and claiming the profits in discharge of the sums due, as aforesaid, for the balance of the purchase-money and the stock in said company, which he was to have.
The answer then states that the reason why the defendant did not sooner answer was, that there had been propositions of compromise pending between the parties, in which a sale to a third person was projected at the price of $25,000; out of which the debt of the plaintiffs on the Franklin Gold Mining Company was to have been paid, leaving the residue for this defendant. The defendant denies that the lease to his daughter was of his contrivance or by his direction to defeat the injunction.
Sarah Davidson, by an answer, admits that she took the lease from Jane Dunn, as charged in the bill; but denies that *Page 249 it was a contrivance to evade the injunction, and says that she took the lease because she believed Dunn had the title to the premises, and for thebona fide purpose of working the mine.
Glenn answers that he has no interest in the premises, and was employed by the other defendants, as a minor, to conduct the work.
Upon the answers the defendant move to dissolve (316) the injunction. But the Court refused the motion, and ordered that it should be continued to the hearing, unless one or more of the defendants would give bond, with approved sureties, in the penal sum of $10,000, with condition to perform such decrees, as should be made in the case against either of the defendants for the profits arising from working the mines in the pleadings mentioned. From that decree the defendants appealed. The Court is of opinion that the decree is erroneous. The bill is not founded upon an equitable title. It propose to state a legal title in the plaintiffs, and assumes that they could undoubtedly recover at law, it they chose to bring an ejectment. The whole purpose of coming into this Court, as appearing upon the bill, is to obtain an account of the ore already dug, and the profits made therefrom, which the plaintiffs claim as the legal owners, and for an injunction against further working in the mines, upon the ground that the defendants, by reason of their insolvency, will not be able to pay the damages, which the plaintiff may recover at law, as legal owners. No privity between the parties is stated, but the defendants are mere trespassers. With respect to the first object of the bill, namely, the account, it is to be observed that we have nothing to do at present. For although the plaintiffs be entitled to a discovery as to the profits, and also to an account and relief by a decree for payment, yet it does not follow that they are entitled to have, or, rather, to hold up an injunction indefinitely against a person, who is in the exclusive possession of the premises. The general principle is, that a court of equity takes no jurisdiction in cases of mere tresspass [trespass], not even by granting a temporary injunction.
But it is admitted, that in cases of mines, timber, and the like, when the trespass consists in acts, by which the substance of the estate is destroyed or carried off, there is an established exception, and that injunctions have been (317) *Page 250 granted to restrain the continued commission of the trespass, upon the grounds that it is an injury of the nature of destructive waste, and of irremediable mischief to the substance of the inheritance.
But it is plain that the jurisdiction to restrain tresspasses [trespasses], like that to restrain nuisances, is not an original jurisdiction of the court of equity, which enables this Court, under the semblance of preventing an irreparable injury to a legal estate, to take a jurisdiction of deciding conclusively upon the legal title itself. Therefore, in such case, the plaintiff ought to establish his title at law, or show a good reason for not doing so; and if he will not, this Court can not undertake, against a defendant's answer, to try the questions of title and trespass and nuisance. Drewry or Injunctions, 238. In Chalk v. Wyatt, 3 Mer., 688, the defendant, who claimed as lord of the manor, was removing earth, shingles and stones, from under a bank belonging to the plaintiff, which protected his land against the irruptions of the sea, and Lord Eldon granted the injunction, in consideration of the irreparable injury the plaintiff was likely to sustain; but he said, at the same time, that he would not have granted it, if the plaintiff had not established his right at law by an action, which he had previously brought and tried. However, it seems right to give an injunction even before a trial a law to prevent such irreparable mischief as, without the interference of the Court, would be done before there could be a trial at law. But it is manifest that, except in cases where equity assumes jurisdiction to prevent multiplicity of suits, or on other peculiar ground, the relief by injunction against trespass upon a legal owner ought only to be granted in aid of the defective legal remedy, and not to supersede the jurisdiction of the courts of law over a question purely legal; and, therefore, that the court of equity should only grant the injunction, where the plaintiff is endeavoring to establish his title at law, and until he should have had a reasonable time allowed for that purpose. Hence, Mr. Drewry, page 186, observes that, in such cases, where, from the nature of the circumstances, very great mischief may result to the (318) defendant from the injunction being held up too long, the interposition of the Court must be with considerable pressure, that, on the part of the plaintiff, there shall be no delay in going to trial; and unless some means of procuring a speedy trial are insured, the Court will not sustain the injunction. In the present case it seems extraordinary that the plaintiffs have brought no action of ejectment, from the time they took the sheriff's deed in January, 1829, until *Page 251 last August, when this order was made, a period of more than five years and a half; during all which time the defendant has been in the exclusive possession, insisting upon an equitable right in himself, and a legal title in his trustee. No reason is given for this singular conduct, but one in very loose terms, intimating, however, sufficiently for us to understand, though vaugely [vaguely], that the defendant held the possession, either upon some agreement or understanding — perhaps not very definite — that the plaintiff's purchase and conveyance from the sheriff should stand only as a security for the debt the company owed them, or that the defendant should pay them and take their title. Enough does not appear in the bill to authorize one to say, that is its statement; if it had, perhaps it would be difficult to sustain the injunction at all, as it would show an equitable interest in the defendant. But unless something of that kind is to be inferred from the bill, it sets forth nothing as an excuse for not having sued at law; it holds forth no purpose of the plaintiffs to sue at law; and the order of the Court lays them under no obligation thus to sue. What, then, is to be the effect of the decree in this suit? Either this Court must, upon the hearing, try the legal title, and decree, upon the ground that it is in the plaintiffs, that the defendants surrender the possession to them, and thus turn this writ into an ejectment, strictly speaking, or the defendant must be left in possession of the premises without being decreed to do anything, but with an injunction upon him in the negative, that he shall refrain from further operations on the mine and land perpetually. Such a decree as the former has been often refused; for this Court will not sustain a mere ejectment bill. And a decree of the latter kind, we have never known to be even asked for. It would be inconsistent with first (319) principles. For it would leave the plaintiffs still under the necessity of going to law to recover the possession, with liberty to the defendant, of course, to shew that they had not the legal title; and the consequence might be that persons, who turned out to have no right themselves, would have an injunction over another person, restraining him perpetually from all use of the property in his possession. The Court upon the hearing, therefore, would be obliged to direct an action at law, and a trial of it within a reasonable time. And in a case of this kind, where the mines may be injured by suspending operations, and the steam engines and other machinery be ruined by not being kept in use and repair, the plaintiffs ought to be required to speed a trial, even if the application were recent after the injury alleged. But, certainly, after so great a lapse of time *Page 252 as five years and a half, it is wrong to keep up an injunction indefinitely without an offer on the part of the plaintiffs, or a requisition on the part of the Court, that a suit should be brought. And, thus viewing the case, the insolvency of the defendant becomes immaterial. Indeed, it is still more oppressive to a person in that situation, than if he were better off to hold over him an injunction indefinitely, although the plaintiff will not, as he might establish his title at law, and turn the defendant out of his possession.
The case has thus far been considered, as it is made by the plaintiffs themselves in the bill. The answer makes a case equally strong against the plaintiffs, though upon different principles. According to the answer the plaintiffs, it is true, could not maintain an action at law, as they have not the legal title, but it is in Morrison, the trustee. Therefore, the plaintiffs had a right to come here in the first instance, if they had stated their case properly in the bill. But, then, if they rely on that disclosure in the answer, they must submit to all the other consequences of that statement. The legal title is held by the trustee for the benefit of both the defendant and his vendees; and as between the defendant and his vendees, as the legal title was purposely retained (320) as a security for the purchase-money, the defendant is looked on in this Court as an equitable mortgagee, and as such had a right to enter into possession of the premises, as the means of compelling the mortgagor to pay the debt, or as the means of raising it out of the profits of the estate. If, then, the interest of the Franklin Gold Mining Company was the subject of sale under execution, the plaintiffs bought subject to the same equity which affected the company (Freeman v. Hill,21 N.C. 389), and, indeed, the answer states that they had distinct knowledge of all the circumstances. Therefore, as the defendant has the superior equity to be satisfied his debt for the residue of the purchase-money, he may avail himself of his right as equitable mortgagee, and of the legal title of the trustee, to retain the possession unless the plaintiffs will redeem by paying the principal, interest and costs, due him. We speak thus upon the supposition that the debts secured in the defendant's assignment to Morrison have been paid, and that the trust resulted to the defendants; which, though not positively stated, we collect from the answer to be so, as the defendant speaks of the unpaid balance of the purchase-money being his own. As to the stock in the company, which the defendant was to have, we presume that is now nothing, as we understand from the circumstances, rather than from any particular statement in the pleadings, *Page 253 that the company is one of the many broken companies or bubbles of its day, in which the stock is not worth a copper. But, for the money balance of the price, certainly, the defendant has a right, as the title is situated, to look to the property as a security, and, if so, his right is, to that extent, preferable to that of the plaintiffs. The circumstance that the defendant became a stockholder in the company, makes no difference, for each stockholder has a capacity, an an individual, to contract with the corporation. It is true, also, that even as mortgagee in possession, the defendant might be restrained from doing any act willfully to the destruction or detriment of the estate, as feeling (321) ornamental trees, or making the mines runious [ruinous] by not keeping proper props, or removing rubbish or the like; because the land is only a security to the mortgagee, and is considered in this Court as otherwise being the property of the mortgagor. But the mortgagee is doing nothing wrong in merely working the mine, and thereby receiviny [receiving] money to be applied in sinking the mortgage debt. Such is the case before us, for the bill alleges no improper act in the defendant in the mode of working the mine, but it is merely founded on the allegation that the plaintiffs have the title, and that the defendant is insolvent, and therefore can not answer the plaintiff's damages arising from his trespass. But until the defendant's debt has been paid, his insolvency can lay no foundation for stopping his operations; because all his earnings are immediately accounted for as credits on the debt the estate owes him. So we think, in every point of view, the injunction should have been dissolved. As legal owners, the plaintiffs ought to have brought suit at law long ago, and asked only for an injunction until a trial could be had. As mortgagors, or the assignees of a mortgagor, or of one treated in equity as a mortgagor, they should have filed their bill to redeem, and offered to pay the principal and interest due to the defendant. We speak in reference to the defendant William Davidson, to whose situation alone these remarks are applicable.
As to the other defendants: Jane Dunn is in default in not answering, and this appeal brings up no question as to her. To the defendants, Sarah Davidson and Glenn, it is now immaterial what becomes of the injunction, as the lease to the former had expired before the motion to dissolve. But they were entitled, for the foregoing reasons, to be let loose by a dissolution of the injunction; though not with costs, we think. *Page 254 For, notwithstanding the answer, we can not shut our eyes to the admitted facts, that the original bill was filed on 25 August, and between that day and 3 September, the defendant Sarah Davidson, a single daughter of (322) the original defendant, and an inmate of his house, took a lease for the premises; nor fail, as persons of common sense, to infer therefrom that the purpose was to enable her father to proceed in working the mine as he did before, only in her name instead of his own; especially as William Davidson expressly states in his answer that he has been in possession ever since the sheriff's sale, for his own use, as entitled to a balance of the purchase-money out of the land. And we can not understand the equivocation, on which the defendants, under such circumstances, can bring themselves to deny that, in taking the lease from Dunn, they had it as an object to evade the injunction. We can not doubt that it was an artifice in fraud of the process, and therefore we think that none of the defendants should be entitled to costs on the dissolution of the injunction.
This opinion will be certified to the court of equity; that further proceedings may be had in the cause accordingly.
PER CURIAM. ORDERED ACCORDINGLY.
Cited: Gause v. Perkins, 56 N.C. 179; Bogey v. Shute, 57 N.C. 177;Thompson v. McNair, 62 N.C. 124; Ragland v. Currin, 64 N.C. 357;Levenson v. Elson, 88 N.C. 185; Roper v. Wallace, 93 N.C. 31; LumberCo. v. Cedar Co., 142 N.C. 417.
(323)