Gobble v. . Orrell

Walker, J., after stating the case: It is apparent that plaintiffs are the owners of the land, unless the defendants have acquired it by inheritance from their father, who had mortgaged it to J. M. Lomax, it being afterwards sold by him under the mortgage to Robert A. Gobble, father of plaintiffs. Defendants contend that Hiram Gobble sold and conveyed the land in violation of an injunction issued by the court in the divorce suit, and that his deed is therefore invalid; and if this is not so, they *492 claim by the adverse possession of their mother for twenty years of the land after the decree was entered. But, in our opinion, neither defense is good or. available in law to defeat the plaintiffs’. recovery. In the first place, it is evident that the court, by'omitting all reference to the injunction in the final decree and placing- all of the property, both real and personal, in the hands of the receiver, with instructions to collect the rents and profits and pay the alimony, intended to dissolve the prior injunction as being, perhaps, unnecessary and futile, the receiver’s possession being quite sufficient to secure the alimony to Mrs. Gobble, which was the object in making the order. • The court continued the possession of the receiver as to the personal property and enlarged the former order by giving him possession and control of the land for the purpose of his resorting to the personal property and the rents and profits of the land to pay the amount of alimony as it matured. The clear inference, and the true construction of the order and decree, which must be taken together, is that the injunction, or restraining order, lapsed or ceased to operate, and the receivership as to all the property was substituted in its place, as being a perfectly adequate and sufficient remedy for the preservation of the wife’s rights. The position as to the injunction, therefore, cannot be sustained. While the point is not presented for decision, a reference to some of the authorities on the question, as to the effect of an injunction upon a deed made in violation of it, may not be out of place, and it will be seen that they are not altogether in perfect accord, some holding that the deed is voidable only to the extent of preventing its interference with the remedy of the party who obtained it, so that it will not be allowed to affect a substantial right of the other party or to- deprive him of a substantial -interest. If such a right or interest is not impaired, the act done or deed executed in violation of the writ is permitted to stand, or, in other words, it is always subject to the enforcement of the right and the protection of the interest., The other authorities seem to hold the act or deed, to be void; but it may be that the apparent conflict can be reconciled, if proper *493 attention is given to tbe facts of eacb ease decided, and tbe necessity of protecting tbe particular right involved, extending tbe principle in some cases and relaxing or modifying it in others to suit tbe facts and exigencies of tbe particular case. Butter v. Niles, 35 Hon. Pr. Rep. (N. Y.), 329, citing People v. Sturtevant, 9 N. Y., 263; 2 Spelling on Inj. and Extr. Rem., sec. 1133; Union Trust Co. v. S. I. N. Y. Nav. and Imp. Co., 130 U. S., 565 (32 L. Ed., 1043); 2 Higb on Inj., sec. 1461; Morris v. Bradford, 19 Ga., 527, citing Roberts v. Jackson, 1 Wend. (N. Y.), 485; Farnsworth v. Fowler, 1 Swan. (31 Tenn.), 1; Seligson v. Collins, 64 Texas, 314; Bissell v. Besson, 47 N. J. Eq., 580; Taylor v. Hopkins, 40 Ill., 442; Ward v. Billups, 76 Texas, 466. Tbe general consensus seems to be that tbe act in contravention of tbe writ of injunction is not only punishable as a contempt of tbe court’s authority, but will not be allowed to prejudice tbe right and remedy of tbe party in whose interest it issued; but whether, subject to this rule, it will be allowed to stand at all, tbe authorities are not agreed. We refer to tbe subject in passing, as tbe reference may be of some practical avail in tbe future. It does not affect tbe merits of this appeal, as we bold that tbe court did not continue the injunction permanently, conceding its power to do so, its first order being merely equivalent to one enjoining tbe defendant against selling tbe land to tbe bearing, or until tbe matter was disposed of by a final decree. But if it bad been continued, tbe plaintiff in that suit, as we will see, was not injuriously affected by its violation, as it was issued to protect and preserve her right to alimony, and this she received in full, and consequently was in no way prejudiced by tbe mortgage to Lomax and tbe subsequent conveyance to Robert A. Gobble. Tbe other position advanced by defendants is equally untenable. They claim that as their mother was in possession for twenty years adversely, she acquired thereby a title to tbe land; but we cannot admit tbe premise from which this conclusion is drawn. Her possession was not adverse. Tbe receiver, it appears, collected the rents and profits of tbe land and paid them *494 to ber. Tbe land was in the custody of the law, through him, and the judgment by which he was placed in the possession of it was given at her request. She could not take possession of the land and hold it adversely to the receiver, without being guilty of a contempt of the court by the violation of its order issued at her instance. High on Receivers (3 Ed.), 163, The receiver’s possession is that of the court, taken for the purpose of securing the thing in controversy, so that it may be subject to such disposition as it may finally direct. High on Receivers, secs. 134, 135 et seq. The defendant in that suit was put out of possession by the judgment, as the receiver was ordered to collect the rents and profits and was entitled to control the possession for that purpose. This being so, the law“ will not allow the possession by the plaintiff to destroy his title, while he was thus forbidden to enter and assert it. We have an ancient maxim that the act of law shall prejudice no man. Broom’s Maxims (6 Ed.), marg. pp. 127, 395. The maxim was applied in Isler v. Brown, 66 N. C., 557, and Howell v. Harrell, 71 N. C., 161, to prevent the loss. of a right by inaction or passiveness caused by its order. It is a just rule, and our moral perceptions of right would be rudely shocked if any other were allowed, to j)revail and deprive a man of his rights, when by. the act of the court or the law he was rendered powerless to protect or preserve them. Besides, there is no evidence here of notorious and adverse possession under a claim of right. The plaintiff in the other case evidently held the possession by consent of the receiver, and her occupation was subordinate to his dominion over the land as an officer of the court. She received the rents and profits in this way, in discharge of her claim for alimony, instead of requiring him to lease the land, collect the rents, and pay them over to her. We will not presume that she intended to do a wrong. Our conclusion is that the instruction to the jury was correct. No error.