After stating the case: It is true, as contended by the defendant, that ordinarily the equitable jurisdiction of the court can not be invoked to restrain the sale or other disposition of personal property when an action at law may be maintained to recover the property (Baxter v. Baxter,77 N.C. 119; Kistler v. Weaver, 135 N.C. 391), and it requires no authority to sustain the proposition that if the act has been committed it can not be restrained.
It is also true that an allegation of insolvency is necessary, except where dispensed with by statute, in cases where compensation in damages affords an adequate remedy. McKay v. Chapin, 120 N.C. 159; James v.Markham, 125 N.C. 145; Porter v. Armstrong, 132 N.C. 66; Kistler v.Weaver, 135 N.C. 388.
We do not think, however, that these principles are applicable to the facts of this case.
The subject-matter of the controversy is a negotiable instrument that has not been dishonored, and it may be assigned to an innocent purchaser. If so assigned, the holder would become the owner and could enforce payment (Revisal, secs. 2201 and 2206), and the right of the plaintiffs to recover the property would be thereby defeated, while in the ordinary action by the owner to recover personal property a sale by the defendant would not have this effect.
It is also, if the allegations of the plaintiffs are true, a trust fund, which belongs to the ward, George Hoke, and the plaintiffs, who seek to recover it, are the guardian and the sureties on her bond.
Nor does it appear that the note is beyond the control of the defendant. He says it has been transferred and assigned to the bank, but he does not allege that the assignment was for value, and there is no pretense that it was a gift. He knows the facts, and it was his duty to disclose them. If he remains silent, we are justified in concluding that his assignment is not beyond recall, and particularly when the bank makes no claim to the note.
The failure to allege insolvency is not decisive of the right to (218) a restraining order, although in many cases it is material. R. R.v. Mining Co., 112 N.C. 662. It is no more than evidence on the question of irreparable injury, and if such injury is shown without proof of insolvency a court of equity will intervene. *Page 178
Irreparable injury is frequently dependent on the nature of the subject-matter.
Chief Justice Marshall, in Osborne v. Bank, 9 Wheat., 845, speaking of the grounds on which the jurisdiction of the court of equity to restrain may be placed, says: "One, which appears to be ample for the purpose, is that a court will always interpose to prevent the transfer of a specific article, which, if transferred, will be lost to the owner. Thus the holder of negotiable securities, endorsed in the usual manner, if he acquired them fraudulently, will be enjoined from negotiating them, because, if negotiated, the maker or endorser must pay them. Thus, too, a transfer of stock will be restrained in favor of a person having the real property in the article. In these cases the injured party would have his remedy at law. . . . But it is the province of a court of equity, in such cases, to arrest the injury and prevent the wrong. The remedy is more beneficial and complete than the law can give."
The doctrine is stated accurately and clearly in Pom. Eq. Jur., secs. 1339 and 1340, as follows:
"Sec. 1339. The jurisdiction to grant injunctions restraining acts in violation of trusts and fiduciary obligations, or in violation of any other purely equitable estates, interests or claims in and to specific property, is really commensurate with the equitable remedies given to enforce trusts and fiduciary duties, or to establish and enforce any other equitable estates, interests or claims, with respect to specific things, whether lands, chattels, securities or funds of money, or to relieve against mistake or fraud done or contemplated with respect to such things. In all such cases the question whether the remedy at law is adequate can not arise; much less can it be the criterion by which to determine whether an injunction can be granted, for there is no remedy at law." (219) "Sec. 1340. Among the instances in which equity will grant an injunction, preliminary or final, in pursuance of the general doctrine as stated in the foregoing paragraph, the following are some of the most important, and they fully illustrate and establish the doctrine itself, in all its generality, and the grounds upon which it rests: To prevent the transfer of negotiable instruments, at the suit of the defrauded maker or acceptor, or of the party claiming to be the true owner, or who have an interest in them; or the transfer, under like circumstances, of stocks or other securities not strictly negotiable."
The rule was applied in Caldwell v. Stirewalt, 100 N.C. 205, and a restraining order granted, although there was no allegation of insolvency. See, also, Mfg. Co. v. Summers, 143 N.C. 102.
There is a serious controversy in this action between the plaintiffs and defendant, and issues are raised which must be settled by a jury, and under such conditions the restraining order should be continued to *Page 179 the hearing. Hyatt v. De Hart, 140 N.C. 270; Tise v. Whitaker-Harvey Co.,144 N.C. 507.
Zieger v. Stephenson, 153 N.C. 528, in which the same rule is stated, is in many respects like the one we have under consideration, but it is chiefly valuable for the learned discussion of the distinction between common and special injunctions by Justice Walker.
We find no error.
Affirmed.
HOKE, J., not sitting.