
    WILLIAM S. ASHE vs. EDWARD J. HALE & AL.
    To support a bill of injunction by the purchaser of land against the vendor to restrain the collection of the purchase money, upon the ground that there were prior liens upon the land (as, for instance, for taxes due,) tha plaintiff must set forth in his bill, as nearly as he can, the amount of such liens ; and where he alleges he gave more for the land than he otherwise would have done, in consequence of misrepresentations made by the vendor or his agent' at the time of the sale, he must sot forth what he believes to be the amount of the injury he has sustained by reason of such misrepresentations.
    Where a purchaser is entitled to compensation merely, he cannot enjoin the vendor from collecting the purchase money, or at most he can only enjoin him for the sum which he alleges' distinctly in his bill to be due to him for such compensation.
    It is the usual course in injunction cases, that all the parties defendant shall answer, before a motion.can be made to dissolve ; but that rule may be dispensed with under peculiar circumstances, as where the party not answering is not charged in the bill with any particular knowledge of the facts alleged, and the parties, who have answered, wore so charged.
    Where land'was devised to a trustee, in trust “ for the sole and sepárete uso of A B. until such time as the then existing debts of her husband should have been by him discharged and satisfied, and in that event to be conveyed to him Held that, when the husband died without having discharged such debts, the equitable fee simple rested either in the said A. B. or in her for life and after her death in the heirs at law of the testator; and that, in either case, the purchaser of the land, sold under a decree of a Court of Equity, to which the said A. B. and the said heirs were parties, acquired a good title in fee.
    The case of the Bank of the State v. Forney, 2 Ire. Eq. 181, cited and approved.
    Appeal from an interlocutory order of the Court of Equity of New Hanover County, at the Spring Term, 1847, refusing a motion to dissolve an injunction theretofore granted and continuing it to the hearing, his Honor Judge Battle presiding.
    John Mosely Walker made his will on the 24th of October, 1824, and shortly afterwards died. By it he devisedi and bequeathed his land called Mosely Hall, in New Hanover County, and all his other property, real and personal, to Samuel Ashe and Charles P. Mallett and their heirs, in trust, “that my said trustees will hold the said property to the sole and separate use of Mrs. Caroline M. Walker, wife of Carleton Walker, until such time, as the now existing debts of the said Carleton, shall have been by him discharged and satisfied ; and then in trust and for the use and benefit of said Carleton, to whom my said trustees may convey it; and further, my said trustees may permit Mrs. Caroline M. Walker, to receive and have to her sole and separate use, the rents and profits of the lands, the dividends on my bank slock and the hire of my negroes, until such time as the trust estate, as to her, shall be terminated, and her receipt for them shall be a full and sufficient discharge.
    The testator appointed the trustees his executors'; but Mr. Mallett did not prove the will nor accept the trust, and Mr. Ashe alone acted.
    The testator was the only child of Carleton Walker by his first marriage. At the time of the testator’s death he left, surviving him, his father and Caroline M. Walker, then the wife of the said Carleton, and eight half brothers and sisters, the issue of his father’s said last wife.
    At the making of the will, and at the death of the testator, the father, Carleton Walker, was very largely indebted and entirely without property, and he so continued tip to his death, which happened in 1840, and without his having paid any of those debts, or leaving an estate, unless it.be the interest derived from his son under the provisions of his will. Samuel Ashe, the trustee, died without devising these lands, and left several children, his heirs at law ; of whom the present plaintiff is one.
    In January 1843, Caroline M. Walker and her eight children, filed their bill in the Court of Equity for Cumberland County, against Mallett and the present plaintiff and the other heirs of the deceased trustee Ashe, setting forth the foregoing facts, and stating that they were advised that the Mosely Hall land and other real estate left by the testator belonged equitably to Mrs. Walker during her life, and at her death to her said children, and that the interest of those parties would be promoted by a sale of Mosely Hall, and dividing the proceeds equally among the children, after allowing thereout to. Mrs. Walker a certain proportion, which she was willing to accept for her interest in the land. The present plaintiff put in an' answer to that bill, in which he admitted all the facts stated in it to be true ; and such proceedings were had in the cause, that by consent of all the parties thereto, it was decreed, that Mosely Hall should be sold in fee simple, as prayed for, and Mr. Smith, the Clerk and Master of the Court, was appointed the- commissioner to make the sale at public auction. Mosely Hall contained about 3,000 acres, and was offered in parcels, and the present plaintiff was reported as the purchaser of four of of them, known by the numbers 1, 2, 4 and 5, on the map of the whole tract. The plaintiff, according to the terms of the sale, paid down one eighth part of the purchase' money, and for the residue gave his notes payable to the Clerk and Master at the different periods. He also paid two of those notes ; but failed to discharge two which’ which fell due in January 1846, and the Clerk and Master, under the order of the Court for the collection of the money, brought suits on them and obtained judgments, the one for $603 40, and the other for $999 33, and therefor issued executions. There remained four other notes of the same amounts; two of them falling due the 1st of January, 1847, and the other two on the 1st of January, 1348.
    After the above mentioned two judgments were obtained, the plaintiff, on the 12th of November, 1846, filed the present bill in the Court of Equity for New Hanover against, the Clerk and Master, Mr. Smith, and against Mrs Walker and her eight children, and the husbands of such of the children as are females. After setting forth the will of the testator, John Mosely Walker, and the suit brought by Mrs. Walker and others for a sale of Mosely Hall for partition, and the decree therein, and the sale under it, and the plaintiff’s purchase, as already stated, the bill charges, that at the sale, Smith represented that one of the parcels, purchased by the plaintiff (which was bid off for him by a friend) had a valuable mill-site on it, for the purpose of enhancing the price, and that the plaintiff was induced thereby to give more for that parcel than he would otherwise have done. The bill further charges, that one McIntyre owns the land adjoining that parcel, and has, since the sale, erected a mill on the stream below the point, at which it was represented by said Smith there was a suitable seat for a mill on said parcel so purchased by the plaintiff, whereby the alleged mill seat is entirely over-flowed and rendered of no value to the land, and making it sickly. And the bill further charges, that, from information since obtained, the plaintiff believes that McIntyre had the legal right, either by-deed, grant, or prescription, to erect his mill.
    The bill further charges, that, at the time of the sale, “ the State and County taxes had been allowed to remain unpaid and to accumulate as a lien upon the land and the plaintiff insists that it is unjust, that he should be made to lose the amount of those taxes.
    The bill then states, that the plaintiff’ is advised by counsel, that the land is liable in equity for the debts of Carleton Walker, deceased, as the cestui que trust of the same ; and, moreover, that the plaintiff, being one of the heirs and executors of the trustee, Samuel Ashe, could not make a valid purchase of any part of the land, but that it is still subject to .the creditors of Carleton Walker.
    The prayer is, “ that the said Smith may be enjoined from proceeding to collect the money on the two executions, and from bringing suits on the other notes, as they should fall due; and that the said 'Smith and the other defendants may be compelled by a decree to come to a full settlement with your orator in the premises.”
    A copy of the bill and subpoena were served on Smith, Mrs. Walker and each of her children, except on Mrs. Mary Byrne, one of her daughters, and a widow.
    The defendant, Mr. Smith, answered separately; and he states, that he has no recollection of having made any representation at the sale, with regard to a mill-seat on the land, and that he believes he did not. He states, indeed, that he knows nothing of the land except upon the information of one Johnson, a surveyor, who had been employed to survey and lay out the land into parcels, of which fact the plaintiff was fully cognizant: And that
    Johnson was present at the sale, and gave such information as was asked of him by bidders : and those were the only representations made ; and the defendant heard no representation of the kind from him. He further states, that the lot or parcel, on which the plaintiff alleges there was a mill-site, as represented, was not bid off by the plaintiff, but by Edward J- Hale, who was the husband of one of the testator’s sisters, and one of the owners of the land, and who afterwards assigned his bid to the plaintiff. The defendant says, that he merely acted officially, and sold the land as it was, without making any representation; and that the plaintiff was fully aware of those circumstances, and knew the title, and the situation of the land. He further states, that he does not know of any taxes being due on the land ; and insists that, as the plaintiff, as an heir of his father, was one of the trustees of the estate through whose hands the issues went, he must have known, at the time, how the fact was.
    E. J. Hale and wife, put in a separate answer, in which they state, that the plaintiff advised the filing of the bill for the sale of the land, and concurred in the opinion, that it belonged to Mrs. Walker for life, and afterwards to her children in fee; and that the decree was entered upon his express consent, and that of the surviving trustee, Mallett, and of all parties in interest. At the sale, the plaintiff, who was a lawyer by profession, mentioned, that he had been informed, some persons doubted the title, but he assured the bystanders, that in his opinion, the title was undoubted, and that he and his father’s heirs would make any assurances desired by purchasers.
    The defendant, E. J. Hale, answers, that he was present at the sale, and he heard no such representations about a mill seat as are charged by the plaintiff, and he believes, none whatever were made by any person. He states, that on the map, w'hich was exhibited, and by which the sales were made, there was marked on lots Nos. 4 and 5, the words “Old Milland he expects that may have led the plaintiff into the error of supposing that Mr. Smith had made some representation about a mill-seat, with a view to enhance the price. He further says, that in fact, he, this defendant, purchased those two lots on the joint account of the plaintiff and himself, and after-wards’gave up the whole purchase to the .plaintiff; and he avers, that he was not induced to give one cent more for them by any remark from any one about a mill-site, and that he thinks the land amply worth the price without any mill-site; and that the plaintiff was born, and, until manhood, lived, within a mile or two of the land, and was well acquainted with it. This defendant further answers, that, after the sale, and before he relinquished his bid to the plaintiff, McIntyre served a notice on him, that he intended to apply to the County Court for leave to build a mill, and that he communicated the same to the plaintiff and that he, the plaintiff had full knowledge of McIntyre’s application, before the sale was confirmed or reported, and expressed his intention to oppose it.
    All the other defendants, upon whom process was served, put in an answer, in which they state, that they have no personal knowledge of the facts, but that they are informed and believe, that the several matters stated in the answers of Smith and Hale are true.
    Upon these answers, the defendants moved to dissolve the injunction, which had been granted in vacation, on the bill; but the Court refused the motion, and the defendants by leave of the Court appealed.
    
      Strange, for the plaintiff.
    
      W. Winslow, for the defendants.
   Ruffin, C. J.

The Court is of opinion, that the decretal order is erroneous and must be reversed. Upon the reading of the bill, by itself, it is difficult to conjecture on what ground an injunction could have been granted. The bill places the plaintiff’s right to relief on three grounds: namely, that there were taxes in arrear, at the time he purchased, which form a lien on the land, that the defendants ought to discharge : that on one of the four lots, which he purchased, the Clerk and Master represented at the sale, that “ there was a valuable mill-site.” and that, in consequence thereof, the plaintiff was induced to give more for that parcel, than, otherwise, he would: And that the plaintiff had not a good title, because he had been advised, that, under the will of his son, the estate was liable, in the hands of the plaintiff, for Carleton Walker’s debts. These are the allegations of the bill, and the prayer is for an injunction against the judgments and unpaid notes, (amounting together to about $4,500, and being nearly three fourths of the purchase money) and that the defendants “ may come to a full settlement” with the plaintiff.

The first two grounds, if they had been properly stated, are such as only entitle the plaintiff to compensation, and not to rescind the contract. But to entitle the plaintiff to an injunction, so as to give him the compensation by way of deduction from the purchase money, he must state in the bill, the amount of his loss, and some probable estimate of the deduction that will be a reasonable compensation. He says there were taxes due on the land ; but, because twenty or fifty dollars were in arrear, the defendants are not to be kept out of their whole purchase money. Indeed, unless the bill states the sum due for taxes or gives some excuse for not doing so, it cannot be assumed, that more than a nominal sum was behind. So, with respect to the mill-seat, the statements are equally vague. There is no pretence that the mill was the principal object of the plaintiff’s purchase of that lot, even, on which he says he thought it was. Nor is it- alleged, that the other lots are so complicated with that, as to have their value affected. It was merely an incidental advantage, appurtenant to a particular lot, which, in his opinion, enhanced its value ; and, therefore, according to the common learning, he could not be compelled to complete the purchase without a deduction for the difference in value. It is clear, then, that the plaintiff cannot ask to have the contracts for the other lots touched, nor, indeed. that for the particular lot, except to have a reasonable deduction from the purchase money for it, by way of compensation. Yet he has sought and obtained an injunction as to the residue of the purchase money, and that without setting any value upon a seat for a mill there, or giving any estimate whatever of the diminution in value from the loss of it — saying, merely, that the Master represented, that there, was a “ valuable” mill-site, and that he was induced to give “ more” for that parcel than he would have done without it. If the party will not venture to state, on his oath, the extent of his loss, the Court cannot presume it to be to that extent, which makes it proper to restrain the vendor from calling for any part of his debt, If it were otherwise, debtors would be encouraged, instead of seeking compensation for the real injury, to make these loose statements in order to prolong the injunction, until the damage could be ascertained by enquiring after the hearing ; and the delays from injunctions would become yet more reproachful than they are at present. But, if these observations be, as they are believed to be, generally correct, they apply with peculiar force to the present case ; in which the plaintiff does not ask, for these reasons and that of the defect of title super-added, to have his purchases rescinded, but seeks merely an injunction and “ a settlement.” The plaintiff is in the enjoyment of the estates under his purchase and the order of confirmation, and without offering to give up the contracts or the possession, or saying what kind of a settlement he desires, he prays an injunction for about three fourths of the purchase money, for an indefinite period, upon the two grounds, that a trivial sum was due for taxes at the sale, and that he bid for one of the lots a trivial amount “more” than he would have doné, because of something that was said about a seat for a mill on it. Besides, the plaintiff does not allege, that there was not the mill seat, according to the representation which he charges. But he says, it has been lost by the building of another mill below it, by another person, who, as the plaintiff believes, had the legal right, “ either by deed, grant, or prescription.” Now, if a mill be built by any person, so as to injure another’s property, he must make just compensation ; and, therefore, in that point of view, a plain legal remedy is open to the plaintiff. Then, as to the statement, that the plaintiff is informed and believes, that the other mill was erected by one who had right in one of the ways mentioned, by deed, grant, or prescription, it is to be observed, as has been done, as to the other parts of the bill, that it is entirely too vague and conjectural to found a decree on. A title ought to be stated in the pleadings. Otherwise, the defendants cannot answer to the plaiutiff’s grounds of relief, and the decree is necessarily founded on proofs beyond the allegations. If the other person set up a paramount right to erect a mill, the plaintiff ought to have stated his title before he can claim relief on the mere ground of that title, without any statement that it is not known to him, or was known to the defendants, when they sold, or is even now known to them.

We come then to the third ground, which is a defect of title by reason of the encumbrance of Carleton Walker’s debts. The bill does not allege any fraud on the Court in obtaining the decree for the sale, that the title of the parties was not truly shewn to the Court as claimed. Indeed the plaintiff was a necessary party to that suit, and therefore would not undertake to prefer such a charge. It might then be a question of no slight difficulty in the way of the plaintiff, whether, after the Court of Equity for Cumberland bad decided on the question of title arising upon the construction of the will and by descent, and had confirmed the sale of that title to the plaintiff, he could sustain a bill in another Court of Equity to have the title declared defective, and on that ground be relieved to any extent from his contract. The solution of that question favourably to the plaintiff is not rendered the easier, when it is considered that the Clerk and Master is made a party, and that it is placing’ him under the opposing obligations of obedience to the order of the Court, of which he is the officer, to collect the money, and of the other Court not to collect any part of it. But the Court does not enter into that question, since it is not necessary to the decision of this case. For the Court is clearly of opinion, that the plaintiff has a good title. The only defect, sugges-ted in the bill, respects the, interest of Carleton Walker, and the encumbrance of his debts as appearing upon the face of the will, of which a copy is set out in the bill. In the events which have occurred, no estate vested in that person or has become subject to his debts. The land is given to the trustees in trust for the wife to- her separate use, until Carleton Walker should pay his debts then existing, and then in trust to convey it to the husband. The case is, therefore, directly within that of Bank of the State v. Forney, 2 Ired. Eq. 181, The bill charges that he died very much in debt and without any property, unless he had a title under his son’s will. It does not allege that any of the debts were contracted after the making of the will, or that he paid any part of those existing. It must be understood, then, that the debts he owed when he died were the same debts, which are mentioned in the will, and the payment of them is made a condition precedent to the arising of the trust for him ; and, as he is now dead without property, that condition can never be performed ; and the case just mentioned excludes his creditors. It might, perhaps, be a question, whether Mrs. Walker, under those circumstances,' took the fee or only took a life estate, and so, the reversion, not being disposed of by the will, descended to her children, as the heirs of their half-brother. But it is not material to the plaintiff, what the rights of those persons were ; since the fee was certainly among them, and they were all parties to the cause, and the decree and conveyance under it will, under the statute, pass to the plaintiff all the interest belonging to all or either of them. The plaintiff then, gets the absolute title to the land, however the other parties may be entitled to the money. If, however, it had been true, that Carleton Walker had a vested interest liable to his debts, the plaintiff is now in no danger, and would hold the land exempt from those debts. Under the circumstances, and since the bill docs not charge any particular debt to have been contracted after Carleton Walker’s insolvency, or to have fallen due after his death, it is a reasonable presumption, that his only debts were those which existed in 1824, and that they were due before 1840; and, therefore, as Carle» ton Walker died in 1840, and no proceeding by any creditor is suggested, it may be safely assumed, that every creditor of his is now barred by the Act of 1715.

Therefore, upon the bill itself, there does not appear any just ground for relieving the plaintiff from the contract, if he had so prayed; nor for exempting him from the payment of the residue of the purchase money, or, as far as he enables the Court to see, of any such part of it, as will justify the holding up the injunction for any sum in particular, much less for the whole that remains due.

If there were, indeed, any doubt upon the bill, the answers are sufficient to remove it; as they deny that any taxes were due, to the knowledge of the defendants, and deny any such representations respecting the mill, and affirm, that, when the report was made and confirmed, the plaintiff was fully informed of the purpose of another person to build a mill, and likewise that he knew the state of the title, when he purchased and long before, and that the decree and sale were made by his consent. It is said, however, that one of the defendants, Mrs. Byrne, has not answered, and that it is against the course of the Court to dissolve an injunction, upon the answers of only a part of the defendants. It is true, that is the usual course; and it is for that reason, amongst others, that the case has been so much considered upon the bill alone. But it is plain that the rule cannot control the Court in this case. For, in the first place, the bill does not make a case for an injunction, as has been shewn. Next, the bill charges nothing to have been done by this lady, except that she was a party to the suit for sale and partition (about which there is no dispute) and does not charge any of the matters to be particularly within her knowledge ; and those persons, who had any agency in the sale, or within whose peculiar knowledge any of the facts'are charged to be, have answered and fully denied them. Under such circumstances the omission of a defendant, in the situation of this lady, to answer, does not preclude a motion from the others for a dissolution — especially, when the plaintiff did not serve her with process, or, as far as appears, take any other proper steps to bring her into Court.

The Court is therefore of opinion, that the order was erroneous, and that the injunction should have been dissolved with costs. The plaintiff must also pay the costs of this Court.

Per Curiam.

Ordered to be certified accordingly.  