Harriss v. . Sneeden

Merrimon, J., (after stating the case.) In his application in the action for the provisional remedy of arrest and bail, the plaintiff should state in the affidavit such facts as clearly disclose a cause of action as to which the defendant may be arrested as allowed by the statute (The Code, §291). These facts should be set forth with such fullness and legal precision as that the Court can certainly discern the particular cause of action intended to be alleged. It should find the facts from the evidence produced by the plaintiff, and be able to :see and determine that the cause of action exists as alleged. *278 It is not sufficient that it may exist — this must not be left to conjecture or bare probability — the Court must be satisfied from the evidence before it that it does so exist, because the statute allows the order of arrest to be granted only “when it shall appear to the Court or Judge thereof by the affidavit of the plaintiff, or any other person, that a sufficient cause of action exists, and that the case is one of those provided for ” by the statute. Moreover, a party shall not be arrested upon conjecture, on facts which leave the mind of the Court in doubt and uncertainty. The affidavit should state the facts positively, when this can be done, but if it is founded upon information and belief of the affiant, the grounds of such belief must be set forth so that the Court can see and judge of their character and sufficiency. Peebles v. Foote, 83 N. C., 102, and cases there cited. The defendant may, at any time before judgment, move to vacate the order of arrest upon the ground that it was irregularly granted, or that the evidence and the facts found were insufficient to justify it. In such case the plaintiff cannot be allowed to offer additional evidence to support his motion improperly granted. The Code, §.317; Bear v. Cohen, 65 N. C., 511; Devries v. Summit, 86 N. C., 126. But the defendant may also support his motion by producing counter affidavits and other appropriate evidence to prove that that the plaintiffs’ motion for the order of arrest was not well or sufficiently founded. In this case the plaintiff may produce additional affidavits and other pertinent evidence to cure defects and strengthen his case. Clark v. Clark, 64 N. C., 150; Devries v. Summit, supra. The Court having the order.of arrest and the motion to vacate it before it, will determine whether or not for any cause the order was improvidently granted, and, if need be, finding the facts from the whole evidence and considering and applying the same, it will direct that the order remain *279 undisturbed; that it be modified in some particular or vacated accordingly, as it may be of opinion, one way or the other. A motion to vacate the order of arrest should be allowed, if, upon all the facts found and the law arising thereon, the Court should be satisfied' that the order ought to be vacated. But when -the order was properly granted, as the facts at first appeared, a mere denial by the defendant of the plaintiff’s allegation sufficiently made would'not be sufficient to prompt the Court to allow a motion to vacate the order. Nor ordinarily would the admission of the material facts, upon which the order was granted and facts made to appear in avoidance of the case made by the plaintiff be sufficient, unless such facts in avoidance should have such point and weight as to satisfy the Court that the plaintiff’s grounds for the order of arrest were not well founded. The order regularly and properly granted — that is — granted upon sufficient proof to warrant it upon the application, should not be vacated, but upon convincing proof that it should be. Hale v. Richardson, 89 N. C., 62; 1 Whit. Prac., 421, 422,(4 Ed.); 3 Estees’ Pleading, §§ 40, 41, et seq; 1 Gray’s N. Y. Prac., 91, et seq. Now if it be granted that the cause of action — that of “slander of title” — which the plaintiffs allege very vaguely and unsatisfactorily in their complaint, which was used as an affidavit in support of the motion for the order of arrest, was embraced by the statute (The Code, § 291), and as to which the defendants might be arrested (and this questionable), the Court had before it the complaint and answer used as affidavits upon the motion to vacate the order of arrest, and informally found the facts from the whole evidence, and that the facts as stated by the defendant were true and “rebutted” — overthrew—the case made by the plaintiff for the purpose of the motion for the order of arrest. We are not at liberty to review the findings of fact by the Court, *280 this being a case at law. Jones v. Boyd, 80 N. C., 258; Hale v. Richardson, 89 N. C., 62; Worthy v. Shields, 90 N. C., 192. And, accepting the facts as found, we cannot hesitate to decide that the Court properly vacated- the order of arrest. The facts alleged by the plaintiffs are indefinitely, vaguely and loosely stated, and therefore to be taken with more caution. The defendants on the other hand expressly and positively deny all the material allegations of the plaintiffs, and allege affirmatively, facts found to be true, which go strongly to show that they claimed the title to the land referred to in good faith, and did not impertinently and officiously interfere with the plaintiffs’s claims, but in order to assert their own claim and title. This they had the right to do in good faith in an action of this character, even though upon scrutiny it should turnj out that their claim of title was not well founded. We may add in this connection, that the cause of action commonly denominated “slander of title” as to real property, arises when one person has an estate or interest in such property, and another person falsely and maliciously denies, impugns, misrepresents or questions the former’s title thereto, and he suffers as a consequence special damage. There is always in such case et damnum et injuria. An essential element of this cause of action is the false and malicious statement or representation as to the title, and special damage to the complaining party occasioned thereby, however or in whatever manner such statement or misrepresentation may be made. As when a party was about to sell or make an advantageous disposition of his land and another impertinently interfered and falsely and maliciously misrepresented that his title was not good, and thereby prevented the sale, or prevented the owner from getting for it as fair a price as he otherwise would have done. In such a case an action would lie in favor of the injured party, but he would be required to prove that he sustained actual damage. Gener *281 ally, it is not sufficient to show that the complaining party intended to sell to any person who might buy; he should allege and prove that he was in treaty to sell to some particular person, or at least that some one was prevented — deterred — by such false statement or misrepresentation from offering to buy. It is not sufficient to show that the community regarded the land as less valuable ; proof must be made that actual damage was sustained. But if the denial of the complaining parties’ title was made bona fide in assertion of the title, real or honestly believed to exist in him who made such denial, an action would not lie. A party has the right, as we have said, to assert in good faith his own title, although he may be mistaken as to its validity. 1 Starkie on Slander, 192; Odgers on Lib. and Slan. 137, et seq.; McElwee v. Blackwell, 94 N. C., 261. There is no error. Affirmed.