Caldwell v. Stirewalt

MerrijioN, J., (after stating the case). The plaintiffs allege a cause of action, and the evidence produced by them in support of the motion for an injunction until the hearing upon the merits, tends strongly to prove, that the action is brought in good faith to obtain the relief demanded, and that the feme plaintiff may be entitled to have the same substantially. On the contrary, while the answer admits some of the material allegations of the complaint, and other evidential facts, it denies others, and alleges matter in defence, and seriously puts in question the matter in litigation. As the matter is serious, and there is doubt, the feme defendant should not be allowed to collect or dispose of the notes in question, until the cause of action shall be litigated. The case is one that comes within the rule of equity applied in Harrison v. Bray, 92 N. C., 488; Coates v. Wilkes, Ib., 376; Ellett v. Newman, Ib., 519; Whittaker v. Hill, 96 N. C., 2; McElwee v. Blackwell, 94 N. C., 261; Lewis v. Lumber Company, 99 N. C., 11, decided at this term. [206] It is true, as contended by the counsel for the appellant, ■that the feme plaintiff, if she intended to abandon the sale, should have done so, and given notice of this her purpose promptly, on discovering the alleged fraud practiced upon herin bringing it about, aswasdecided in McDowell v. Simms, 6 Ired. Eq., 278; Alexander v. Utley, 7 Ired. Eq., 242; Knight v. Houghtalling, 85 N. C., 17, and other like cases. But she alleges that she did so, and it is not at all clear, that, under the circumstances, she did not. What she did, in this connection, must receive a reasonable interpretation, in view of the whole facts. That she did or did not abandon the sale, as promptly as she should have done, is a question that ought not to be decided now. There is such doubt about it, as that it ought to be considered and determined when the case shall be heard upon the merits. There is no error. Let this opinion be certified to the Superior Court, to the end that further steps may be taken in the action there, according to law. It is so ordered. Affirmed.