B. R. Browning & Son v. Lavender

Avery, J. (after stating the facts). It is familiar learning that, where a party has "an adequate remedy at law, a court of equity will not grant extraordinary relief by way of injunction. When, therefore, the aid of the Court is invoked to enjoin a sale of land, on the ground that it will cast a cloud , on the title of plaintiff in possession of the land, and it is apparent from the admitted facts that a purchaser at such sale could not assert title derived from it, without bringing an action for possession against the complainant and raising thereby every question involved in the controversy as to equitable relief, this elementary principle applies and governs the case. Southerland v. Harper, 83 N. C., 200. *73 If the defendant Ferguson, claiming to act as trustee, should sell the land, as he threatened to do, and the purchaser at such sale should bring his action against the plaintiffs, the latter would have ample opportunity to avail themselves of the defence that Ferguson was not lawfully appointed as trustee, did not hold the legal title in the land in controversy, and had no right to sell under the provisions of the will of Margaret Lavender, or had power to convey only one of eleven shares.' Indeed, the burden would be on the purchaser in that event to show affirmatively title in his grantor Ferguson. Meantime — until title should be clearly shown in the trustee — the plaintiffs would be in possession and in the pernancy of the profits. If it appears in considering causes of this kind, that the deeds, records, or other evidences of title, relied upon by a plaintiff, will prove as available for the vindication of his rights at any future time as they now will, then both his present' and prospective remedy at law is sufficient, and a court of equity will not interpose by injunction, nor will an action lie to remove the alleged cloud. Where the illegality or nullity of a deed or record, constituting part of the adverse chain of title, which is alleged to be a cloud on the complainant’s title, is apparent upon its face, or the alleged defect appears of record from one or many instruments, and is in no way dependent upon testimony of witnesses that may be lost by lapse of time, there is no danger that irreparable injury will be sustained, and no sufficient reason for resorting to a court of equity for relief. Busbee v. Macy, 85 N. C., 329; Busbee v. Lewis, Ibid, 332; Murray v. Hazell, 99 N. C., 168. The controversy between plaintiffs and Furguson, trustee, or his grantee, must, in any conceivable event — even in the remote future — depend upon the construction given by the Courts to the contract made between B. A. Lavender and *74 Margaret Lavender in contemplation of marriage, and the' will and other-instruments purporting to have been executed in pursuance of its provisions, and relied on to establish the power of Ferguson as trustee to convey the title, originally admitted to have been in John Alston, to the lands in controversy, or any interest therein. On the other hand, where a forged mortgage deed is wrongfully admitted to registration, and constitutes an apparent lien upon a tract of land, with power to sell for a spurious debt, it is settled that the person whose name has been forged to the mortgage deed, though in possession of the land purporting to have been mortgaged, may bring an action to have the deed cancelled, as a cloud upon his title. Byerly v Humphrey, 95 N. C, 151. The relief in that case is granted, because the proof available to show the forgery may be lost by the lapse of time, and a purchaser at a sale under the power contained in the forged deed, must, in the absence of any evidence of its spurious character, recover in an action against one deriving title from the apparent mortgagor by reason of the estoppel. Murray v. Hazell, supra. The case of Byerly v. Humphrey, cited for plaintiffs, is, therefore, distinguishable from our case. The judgment of the Court below must he affirmed. Affirmed.