
    JAMES H. PURYEAR et als, children of defendant Dr. J. D. Puryear and heirs-at-law of Susan Ann Puryear, deceased, wife of said Dr. J. D. Puryear, and A. W. GRAHAM, v. FANNIE SANFORD et als, heirs-at-law of Dr. James L. Sanford; MRS. REBECCA SANFORD, widow of Dr. James L. Sanford; and DR. J. D. PURYEAR.
    (Decided March 28, 1899).
    
      Injunctive, Relief.
    
    1. A Court of Equity will not enjoin a mere trespass, unless irreparable damage is threatened — the remedy at law is more effectual and appropriate, being both preventive and punitive.
    AppuicatioN for equitable relief, praying for the cancellation of a deed held by defendants; also for an injunction against any conveyance of the land by them, or any interfering with or attempting to enter, or other acts of ownership over the land, or its mineral interests.
    The cause was pending in the Superior Court of Granville County. The restraining order was granted by Timber-lake, J., and continued to the hearing at Chambees., September 17, 1898. Defendants excepted, and appealed.
    STATEMENT OE CASE ON APPEAL TO STTPEEME COUKT.
    NOBTH CAROLINA-GRANVILLE ÜOUNTY.
    In the Superior Court.
    James II. Puryear, Win. L. Puryear, by James II. Puryear, guardian, P. R. Puryear and Bettie E. Puryear, his wife, and A. W. Graham, Plaintiffs, v. Eannie Sanford, Ada Sanford, Cora Sanford, Benj. Yancey and Helen, his wife; W. D. Gregory and Anna, his wife; S. B. Klapp and HVTollie, his wife; M. L. Hurley, and Pattie, his wife; R. T. Chandler and Rose, his wife; W. N. Haskins and Willie, his wife; Mrs. Rebecca Sanford and Dr. Jas.-D. Puryear, defendants.
    
      Tbis action was instituted by plaintiffs against tbe defendants, for tbe purpose of having tbe deed executed on tbe 14tb day of February, 1868, by Dr. James D. Puryear, one of tbe defendants, to tbe late Dr. James L. Sanford, tbe ancestor of tbe feme defendants, delivered up to tbe Court to be cancelled on tbe ground tbat said deed is a cloud upon plaintiff's alleged title to tbe tract of land described in tbeir complaint.
    Upon reading and considering tbe complaint, wbicb is duly verified by tbe Hon. A. W. Graham, one of tbe plaintiffs, and tbe affidavits, bis Honor E. W. Timberlake, Judge, &c., on tbe lOtb day of August, 1898, made an order, copies of wbicb be caused to be issued by tbe Clerk of tbe Superior Court of Granville County, and wbicb copies were duly served on. tbe defendants, restraining tbem from executing and delivering any deed, or deeds, conveying tbe land, or any part thereof, described in said complaint, to any person, or persons, wbatsover, directly or indirectly; or from renting or leasing said land or any part of it, to any person or persons whatsoever, or from executing any option, contract or obligation for tbe sale or renting or leasing said property to any person or persons or from entering upon or exercising any control or act of ownership upon said land until tbe 9th day of September, 1898, at wbicb time tbe defendants were notified to appear before bis Honor at tbe court-house in Durham, and show cause, if any they bad, why said injunction (restraining order) should not be made perpetual. Af-terwards tbe bearing of said motion was continued by bis Honor to be beard by him at Chambers, in Graham, on tbe 17th day of September, 1898, at wbicb time and place bis Honor continued the restraining order, theretofore made by him, on tbe 10th day of August, 1898, until tbe bearing or trial of said action.; and further ordered and adjudged that “plaintiffs recover the costs of this proceeding.” Erom which order or judgment the defendants appealed to the Supreme Court. Notice of appeal accepted by plaintiffs. Appeal bond fixed at $20. Defendants allowed until September 29th to serve statement of case on appeal on the plaintiffs, and plaintiffs allowed until October 4th to serve counter statement of case on appeal on the defendants.
    Appellees’ case on appeal. September 28th, 1898.
    WiNSTON & Puller, Attorneys for Appellees.
    
    We agree to the foregoing statement of case by appellees.
    This Sept. 30th, 1898. • Edwards & Royster,
    
      Attorneys for Appellants.
    
   MoNtgomery, J.

The plaintiff A. W. Graham claims an interest in the minerals, mineral rights and privileges in the tract of land described in the complaint, by virtue of an alleged contract in writing between himself on the one part, and the other plaintiffs and the defendant J. D. Pur-year on the other part. As to the plaintiff’s title to the property, the allegations in the complaint are (in substance) that in 1862 the defendant J. D. Puryear contracted with Seth D. Pool to purchase the land for his wife, Susan Ann Puryear, and that with her money the land was paid for; that Mrs. Puryear, with her husband, went into possession of the land and the mineral rights incident thereto in the same year, the deed, however, having been executed by Pool to Puryear, the husband; that Mrs. Puryear and her husband remained in the adverse, notorious and continuous possession of the property up to the time of her death, which occurred in 1886, and that since her death the plaintiffs other than Graham, as heirs-at-law of their mother, Mrs. Puryear, have been in possession of the land, adverse and open, and are still in possession; and that the plaintiff Graham, after his contract in reference to the mineral interests and privileges with the other plaintiffs and the defendant Puryear, went into possession of the mineral rights and privileges. It is further alleged on the part of the plaintiffs that after the registration of the contract between Graham and the other plaintiffs and the defendant. Puryear, there was found among the papers of the administrator of Dr. Sanford, father of the female defendants, except Mrs. Eebecca Sanford, who is his widow, a deed purporting to have been made by the defendant J. D. Puryear to Dr. Sanford, dated February 14, 1868, for one hundred acres of land “on the waters of Crooked Pork adjoining the lands of W. M. Hill, Thomas Chandler and others,”- for the consideration of $150. It is not alleged in the complaint that the one hundred acres above mentioned are a part of the tract of land described in the complaint, but the defendant in his answer admits such to be the fact. That deed was recorded on the 12th of April, 1898, after the registration of the contract between Graham and the other plaintiffs and the defendant Puryear. The plaintiffs further alleged that they had no knowledge of the existence of the last-mentioned deed until after its registration. Another allegation is that the defendants, except the defendant Puryear, set up a claim and ownership to the land and have obstructed a sale contemplated by Graham of his mineral interest in the land, to his irreparable injury, and that by reason of the acts and words of the defendants and the deed from Puryear to Sanford, the co-plaintiffs, with Graham, will be prevented from executing their contract, by which they will suffer irreparable injury.

Tbe relief sought by tbe plaintiffs in tbis action is that tbe defendant Puryear may be declared a trustee for tbe plaintiffs, and that tbe alleged parol trust originally created for Mrs. Puryear, as set out in tbe complaint, when tbe land was conveyed by Pool to tbe defendant Puryear, may be established; and for tbe removal of tbe alleged cloud on tbe title to tbe property caused by tbe acts and words of tbe defendants and tbe deed to Sanford.

Tbe defendants, other than Dr. Puryear, in their answer, deny tbe allegations of tbe plaintiffs as to their title to tbe land and of tbe plaintiff Graham to tbe mineral rights and interests therein, and aver that they are tbe owners of tbe one hundred acres mentioned in tbe deed from Puryear to Sanford.

An injunction restraining tbe defendants from executing any deed or deeds to said land, minerals or mineral rights, or from their attempting to enter upon tbe lands, was prayed for by tbe plaintiffs and granted by bis Honor, who beard tbe motion, to be continued till tbe final bearing. Tbe matter now before us for decision grows out of tbe appeal of tbe defendants from tbe order granting tbe injunction.

We are of tbe opinion that bis Honor erred in granting tbe injunction. There was no allegation that tbe defendants threatened or intended to enter upon tbe land, but on tbe contrary tbe plaintiffs alleged that tbe defendants bad threatened to bring suit for its recovery. It does not appear that tbe defendants were unable to answer in damages for any trespass upon tbe land they might commit. But if insolvency of tbe defendants bad been alleged and they bad threatened to enter upon tbe land, we do not see bow they could have been restrained from making such entry, even though tbe deed under which they claimed was obviously invalid. “Such entry as a Court can enjoin is only an entry under force or color of legal process. It will not enjoin a mere trespass unless irreparable damage is threatened. There are remedies for a mere trespass, both preventive and punitive, as effectual and more appropriate' than through the equitable powers of a Court.” German v. Clark, 71 N. C., 420. The defendants were also enjoined from executing any deed or deeds of conveyance to the lands, minerals or mineral rights. There was no allegation that the execution of such deeds would injuriously affect the plaintiff’s title. There was indeed an allegation that the assertion of the claims of the defendants through the deed from Puryear to Sanford would prevent the plaintiffs from selling the land and minerals, thereby causing the plaintiffs irreparable damage; but it is apparent that the execution of the deed could not increase the value of the claim already set up under the deed from Puryear to Sanford; nor could the claims of a purchaser under such a deed be calculated to diminish the chances of a sale by the plaintiffs. If the plaintiffs should be entitled to their main relief, as prayed for in their complaint, and there should be a decree of the Court below granting them that relief, the rights accruing to the plaintiffs under such a decree could not possibly be affected even if the defendants had, after this action was commenced, sold the one hundred acres of land and made title thereto to the purchaser. The decree would be based upon the findings of the jury, or by the Judge if submitted to him by consent, that the plaintiff Graham procurred his interest in the land without knowledge of the deed from Puryear to Dr. Sanford (executed before the registration law of 1885),'and that the deed was registered after the registration of the contract under which Graham claimed to have obtained his interest in the land. If the plaintiffs should make good on the trial the allegations in their complaint, the claim of the defendants under the deed from Puryear to Dr. Sanford would be of no avail to them, and of course it follows that any purchaser from them under that claim of title could get no higher or greater interest or title than the bargainors had. And besides, when the complaint of the plaintiffs was filed, that was lis pendens, and all subsequent purchasers would have to take notice of the purposes of the action and of the claim of the plaintiffs. Collingwood v. Brown, 106 N. C., 362; Arrington v. Arrington, 114 N. C., 151. The injunctive relief prayed for in this case does not rest upon such a condition of facts as appeared in the cases of Mortgage Co. v. Long, 113 N. C., 123, and Jones v. Buxton, 121 N. C., 285. In Mortgage Co. v. Long, supra, the allegation was that the defendants (who were judgment creditors of the mortgagor and who had docketed their judgments since the registration of the mortgage to the plaintiffs) were making efforts to sell the mortgaged land under execution, thereby casting a cloud upon the plaintiff’s title to the land. The claim of the defendants, there, was founded upon an alleged misdescription of the land conveyed in the mortgage, and which it was averred rendered the mortgage void. The plaintiffs, there, prayed for a construction of the deed as to sufficiency of description to the land and for injunctive relief against the defendants until the final hearing. The injunction was allowed, and this Court sustained the order on the ground that the sale of the land under the execution would cause irreparable damage to the plaintiffs by the almost certainty of preventing a full price being offered for the land when it should be sold by the mortgagee for the purpose of satisfying the mortgage debt. As we have shown, though, such consequences could not follow a sale by the defendants in this action under their deed from Puryear. If the plaintiff Graham procured his mining interest in the land with knowledge of the deed from Puryear to tbe defendants’ ancestor, and tbe description of tbe land therein contained is sufficiently definite to pass tbe title (wbicb we do not now pass upon for tbe simple reason that it is not before us, and is a matter wbicb wholly belongs to tbe trial below) then, tbe plaintiffs have no title to tbe land. If, on tbe other band, tbe plaintiff Graham got bis interest in tbe land without knowledge of tbe deed from Puryear to tbe defendants’ ancestor and bad it registered (it having been executed before tbe enactment of tbe law of 1885, chapter 147) before tbe deed from Puryear to tbe defendants’ ancestor was registered, then bis title is good and be would be entitled to tbe relief be seeks, if be makes good tbe other allegations of tbe complaint; and any pretended sale on tbe part of tbe defendants would be of no effect, for tbe reasons we have already given.

It is more than probable that injunctive relief was invoked in this case because of tbe allegation in tbe complaint that tbe defendants’ claim rested on a deed — tbe one from Pur-year to Sanford — in wbicb the land attempted to be conveyed (one hundred acres) was described as being “on tbe waters of Crooked Eork, adjoining tbe lands of W. M. Hill, Thomas Chandler and others,” and that tbe answer admitted that tbe boundaries in tbe deed were accurately set out in tbe complaint, and that therefore no part of tbe plaintiff’s land bad been conveyed by tbe deed. We think tbe answer admits that allegation of tbe complaint, and also that tbe one hundred acres was a part of the two seventy-six-acre tracts, claimed by tbe plaintiffs. If that question was before us, we would have no hesitancy in deciding that tbe description of tbe one hundred acres was fatally defective and could not be cured by parol evidence. Allen v. Chambers, 39 N. C., 125; Grier v. Rhyne, 69 N. C., 346. Tbe last two cases were cited and approved in Perry v. Scott, 109 N. C., 374. But that matter belongs to the trial of the case on its merits when it is regularly called in the Court below.

Injunctive relief is afforded along certain fixed equitable rules and should never be granted when no equities are involved and when the question for desision is one purely of law, as in this case.

There was error in the order of his Honor granting the injunction.

Error.

Claeic, J., did not sit on the hearing of this appeal.  