Roberts v. . Lewald

MerrimoN, C. J. after stating the facts: The defendants moved in this Court to dismiss the action, upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The motion cannot be allowed. The action is brought in behalf of all the creditors of the defendant Lewald who become parties thereto, and it appears from the record that a creditor other than the plaintiffs who brought the action has become a party plaintiff and filed a proper pleading, alleging his cause of action as such creditor. Moreover, the plaintiffs who brought the action allege a cause of action that may be sustained when the action shall be tried upon the merits. It is true, the notes specified in the complaint were not due at the time the action began, but the complaint alleges the indebtedness of the defendant Lewald to the plaintiffs, for which the notes wTere given and which they represent, and it further alleges that the notes were given by the maker of them for the fraudulent purpose of hindering the plaintiffs in bringing their action at once, and to enable him to execute the more successfully and effectually the deed of trust alleged to be fraudulent. It is not proper now to decide that the action can, or cannot, be sustained as to the notes mentioned, in some aspect of them, or that it can, or cannot, be sustained as to the cause of action — the indebtedness — of the defendant debtor that they represent, but *309 certainly a cause of action is alleged sufficient and fit, in its character and substance, to be litigated, and this is sufficient for the present purpose, whatever may be the final result. It is settled that a creditor’s action, such as this purports to be, can, and will, in proper cases, be entertained and sustained. This is so, because the Court has jurisdiction of both the legal and equitable rights of parties in the same action, when these are properly alleged in the pleadings. Bank v. Harris, 84 N. C., 206; Mebane v. Layton, 86 N. C., 571; Dobson v. Simonton, 93 N. C., 268; Frank v. Robinson, 96 N. C , 28. The defendants also moved here to affirm the judgment, upon the ground that “no sufficient statement of exceptions has been filed by the appellant, and there is no finding of fact.” Nor can this motion be allowed. The motion for an injunction is equitable in its nature, and hence, upon appeal from the order of the Court below allowing or denying the same, it becomes the duty of this Court to examine the evidence before the Court below, find the facts, and determine, upon such finding, that the motion was properly allowed or denied. But this Court can so review and find the facts only when the same evidence is sent up to this Court that was before the Court below. When the evidence is not all sent up, and cannot, for any cause, be brought up, this Court can only examine questions legal or equitable in their nature, raised by the facts as found by the Court below. Jones v. Boyd, 80 N. C., 258; Young v. Rollins, 90 N C., 125; Worthy v. Shields, ibid, 192; Coates v. Wilkes 92 N. C., 376; Gatewood v. Burns, 99 N. C., 357. All the evidence before the Court below in this case has been sent up and is now before us. The exceptions are very general in their character, but they sufficiently raise the question, whether or not, from the facts, the Court should have allowed an injunction pending the action, and, if it should have been granted, *310 what should have-been its particular character, compass and purpose. We have examined and considered carefully the evidence before us, and, without adverting to it in detail (we ought not to do so), we cannot hesitate to declare and find that it tends to prove the substance of the allegations of fraud in the deed of trust, and the fraudulent conduct of the maker thereof, as alleged. While the evidence tends, not so strongly, to prove that the defendant trustee is not so careful as he ought to be in the discharge of his duty as to the property with which he is charged, it shows that he is capable and abundantly solvent, and that it will promote the interests of all parties to sell the property in controversy as rapidly as this may be prudently done. We are, however, of opinion that no part of the fund arising from the sale of the property should be paid in discharge, or on account of, any debt specified in the deed of trust, or which it purports to secure, pending the action. The order of injunction should, therefore, be granted, restraining the defendant trustee from paying any part of such debt pending the action, until it shall be disposed of upon its merits, or otherwise. The Court has authority to thus secure the fund arising from the sale of the property. Otherwise, the trustee might dispose of the fund as directed by the deed, and greatly embarrass, if not altogether defeat, the rights of the plaintiffs to have the same, or part thereof, applied to the payment of their debt when and if they shall recover judgment for the same. Frank v. Robinson, 96 N. C., 28. The defendants’ counsel, on the argument, cited and relied upon Levenson v. Elson, 88 N. C., 182, and Rheinestein v. Bixby, 92 N. C., 307. In these cases the application was for an injunction and receiver, but here, the trustee is simply restrained from disposing of the fund within the jurisdiction and control of the Court pending the action. This case comes within the rule applied in Harrison v. Bray, 92 N. C., *311 488; Ellett v. Newman, ibid., 519; Whitaker v. Hill, 96 N. C., 2; Lumber Co. v. Wallace 93 N. C., 22. There is error. To the end that an injunction may be granted, as in this opinion directed, let the latter be certified to the Superior Court.' It is so ordered. Error.