Banks v. . Parker

Ashe, J. (After stating the case.) Wo are not informed upon what ground the restraining order was refused. If it was denied on the ground that the children of T. F. Banks who were not parties to the action of ejectment had no right to interpose in that suit and ask that the writ of possession, should be restrained, we think it was error j for they are the equitable owners of the land, the very persons whose rights are to be most affected by the execution of the writ of possession. They have the right to interpose and ask the court for its aid in protecting them from a gross act of injustice. A person in the quiet possession of real estate as owner may obtain an injunction to restrain others from dispossessing him by means of process growing out of litigation to which he was not a party. High on Injunctions, § 259; 28 Ill., 81. If it was refused on the ground that there was a want of equity on the part of the plaintiffs, we think it was equally erroneous; for the plaintiffs have a clear equity to call upon the court for its protection. There is enough alleged in the complaint and not denied, and confessed in the answer, to entitle them to the injunction. They have been unfairly dealt with in this transaction. *160 It is probable if the seven hundred and twenty acre tract had been sold by itself as it ought to have been, it would have brought enough to have disincumbered the two hundred and twenty acre tract. All the facts in this case seem to us to disclose a purpose on the part of David Parker and his sons to take advantage of the plaintiffs. He waits until after the death of T. F. Banks before he undertakes to sell the land, and then he sells in mass under both mortgages— a mode of sale that was calculated to prevent competition and stifle bidding. It was bid in by his sons who it is more than probable never paid anything for it, for though they say thej'' accounted with David Parker for the amount of their bid, they state facts in that connection which are calculated to raise a doubt. They say David Parker was sick at the time of the sale and died soon after, and that was the reason why he did not make them a deed. If he was too ill to make a deed, he was hardly well enough to come to an account and settlement. We must believe, since the two hundred and twenty acre tract brought $2,000, that the remaining seven hundred and twenty acres would have sold for more than enough, with the $1,600 paid, to have satisfied the residue of the debt secured by the first mortgage, if the sale had been fairly conducted. Mortgages with power of sale are regarded with great jealousy, and when there is any unfairness or any suggestion of oppression, the mortgagee will be enjoined until the balance due is ascertained, and all equities between the parties declared. Korn egay v. Spicer, 76 N. C., 95; Capehart v. Biggs, 77 N. C., 261. We are of opinion the injunction should have been granted until the hearing. There is error. Let this be certified to the end that the injunction may be granted and further proceedings had in conformity to this opinion. Error. Reversed.