Supreme Court of North Carolina, 1872

William F. McKesson v. Nancy Hennessee.

Supreme Court of North Carolina · Decided January 5, 1872 · PeaesoN

66 N.C. 473

Counsel

Busbee Busbee, Folk and Armfield for the appellant filed the following brief: I. The injunction was improvidently dissolved, Britian v. McLean , 6 Ire. Eq. 165, Kindley v. Gray , Ib. 445, Cox v. Jerman , Ib., 526. Hilliard on Vendor, 489, et seq . II. And surely the Judge could not give judgment on the injunction bond for the whole amount of the damages: C. C. P., secs. 192, 333. Cited and distinguished: Rev. Code, ch. 32, sec. 17, Emmons v. McKesson , 5 Jones' Eq., 92. (In illustration N.Y. practice, Vorhees' Code, 408, 409. Not quoted as authority in accordance with the ruling in this Court.) Referred to the practice in Thompson v. McNair 64 N.C. 448 . The remedy for the defendant upon dissolution of injunction is by action on the plaintiffs injunction bond or undertaking. 1 Whitaker's Practice, 484. Furches and Phillips Merrimon for the appellee. 1. A purchaser of land who has taken a deed for the same, is on a different footing. That he can then only rescind the contract upon the ground of fraud. Clantern v. Burges , 2nd Dev. Eq., 13. 2. He must then rely upon his covenants. Ibid. 3. But if a purchaser of a defective title, purchases the outstanding claims so as to perfect the same, he may compel the vendor of the defective title, to repay what he has had to pay out. See Ramseur v. Shuler , 2 Jones' Eq., 487, and Westall v. Austin , 5 Ire. Eq. 1. Plaintiff is entitled to judgment upon injunction bond. See Emmons v. McKesson , 5 Jones' Eq., 92. Code of Civil Procedure, p. 68, secs. 192, does not change the rule in this case, and the Court declares for the judgment, c.

Opinion of the Court

PeaesoN, C. J.

The complaint and answer both treat the deed of Nancy Hennesse to McKesson as a conveyance and not asfan executory agreement to make title. It follows, there being no warranty or covenant of seizin, that the claim which the plaintiff seeks to set up has nothing to rest on. The legal effect of the deed was a quit claim or release by way of exting-uishment, and the finding of the jury was upon matter immaterial.

The plaintiff was entitled, upon the undertaking of the plaintiff, to have judgment against him and his sureties for the costs, but not for the debt and interest. In this respect the C. C. P. has made a marked departure from the old practice, as *476 well in regard to injunctions as in "co aPPe^S- ^ie UQ' dertaking is to pay sucb damages as the defenaauu .ma7 su^~ tain by reason of the injunction. The damages may be ascéiv tained by a referee, or otherwise as the judge shall direct. The costs would be included as a matter of course, but how far the defendant has sustained further damage by reason of the injunction, depends on the circumstances. If the plaintiff was solvent at the time of taking the injunction, and by reason of the delay becomes insolvent, the whole debt would properly be included as damages sustained by reason of the injunction, but if the plaintiff’s condition was no better or no worse at the end of the litigation than at the beginning, the defendant has sustained no damage by reason of the injunction, except costs and disbursement.

There is error. Judgment reversed. This will be certified, to the end that the damages which the plaintiff has sustained, by reason of the injunction, may be ascertained Lby a referee, or by a jury, or by the Judge himself, in which event he will find the facts upon which his conclusions of law are based.

Each party will pay his own costs in this Court.

Pee Cuexam. Error.

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