#### JOHN IRWIN & AL vs. WILLIAM DAVIDSON & AL.

The general rule is that a court of equity takes no jurisdiction in cases of mere trespass, not even by granting a temporary injunction.

There is an established exception, however, in the cases of mines, timber and the like, in which cases, injunctions will be granted to restrain the continued commission of acts, by which the substance of the estate is destroyed or carried off.

But when the plaintiff, seeking an injunction in such cases, claims to he the legal owner of the property, he must shew that he has established Ms legal title by the judgment of a court of law; or, that he is prosecuting his suit at law, and the injury, which he will sustain by the acts of the defendant before he can obtain judgment, will be irreparable — and in the latter case, the Court, in continuing the injunction, must make such order as will ensure , the speedy determination of the suit at law.

A court of equity will not try the legal rights of parties to real estate.

If the plaintiffbe a mortgagor, and the defendant a mortgagee, who , alleges there is still a subsisting claim for a debt upon the mortgaged property, though an injunction may be granted to stay a wanton or improvident waste of the mortgaged estate, by the morJ,agee, who has taken possession, yet the plaintiff must, before he entitles himself to relief, bring into court the amount due, or profess himself willing to do so.

This was an appeal from an interlocutory decree of the Court of Equity of Mecklenburg County, his Honor Judge Manly presiding.

*312Tho case was as follows:

By an original bill filed August 25th, 1844, it is charged, that the defendant, William Davidson, was the owner of several tracts of land in Mecklenburg County, and particularly two tracts called, the one, the Williams Gold mine, and the other, the Dunn and Alexander Gold mine tract, and that, by deed bearing date the 1st day of February, 1833, he conveyed the said lands to Joseph Curtis, James N. Hyde, aud Harry F. Talmadge; and the said Curtis, Hyde and Talmadge, on the 4th of April, 1833, conveyed the same to an incorporated gold mining company, called the President and Directors of the Franklin Gold mining company, who entered into possession, and opened and worked certain gold mines thereon, and for that purpose erected thereon a steam engine and other machinery; and that the said William Davidson was a member of the company, and the manager of its mining operations. The bill then states that the corporation became indebted to the plaintiffs in the sum of ,$6500 11, for which they obtained judgment in an action at law, and sued out execution, under which the plaintiffs became the purchasers of the said lands, and the sheriff conveyed (ho same to them on the 28th January, 1839. The bill further proceeds thus : “Your orators further shew, that, at the time of the sale, William Davidson was in possession of the premises as aforesaid, and that he has kept possession thereof in defiance of your orators, and used the same for his own individual purposes ever since; and that your orators have not as yet taken any steps to eject the said William by an action at la-w, hoping and believing that some arrangement would be made, either by the said company, or some member thereof, to pay the debt to your orators, and take a transfer of their right under the sale, in which expectation they are disappointed, and in consequence they have now to look to the property solely for indemnity.” The bill then states, that William Davidson had then recently discovered a very rich vein of gold ore on the Dunn and Alexander tract, and had opened it and raised a large quantity of ore, aud was still doing so, and grinding it with the steám mill, and appro*313priating the proceeds to his private uses; and that the said Davidson was insolvent and notable to answer to the plaintiffs their damages therefor. The prayer is for a discovery of .the quantity and value of the gold made by the defendant, and that an account may be taken between the parties, and a decree made for the amount that may appear to be due to the plaintiffs, and that the defendant may be enjoined from “using said property or any portion thereof, and from moving away any gold ore that he has taken out ofthe Dunn and Alexander mine as aforesaid,” and for general relief.

Upon the bill and usual affidavit, an injunction was awarded by a Judge in vacation, as prayed for.

By a supplemental bill, filed September 3d, 184.1, the plaintiffs charge that, upon notice of the filing of their original bill and of the award of an injunction, the defendant, William Davidson, and his single daughter, Sarah Davidson, who was living with him, took, in the name of the said Sarah, a lease for the Dunn and Alexander mine for the term of two years from one Jane Dunn, who had no title whatever thereto, and then let one David Glenn into possession with William Davidson, and that they were working the mine on account of William Davidson, as before, or on the joint account of him and his daughter. The bill charges, that the giving and accepting ofthe lease was by collusion between all the said parties, and with the view of evading the injunction that had been issued on the original bill; and that neither ofthe said persons is able to pay any recovery the plaintiffs might effect in an action at law ; and, therefore, that the injury will be irreparable to the plaintiffs, unless the operations of the defendants should be stopped by an injunction ; which the bill prays for accordingly.

Thereupon, au injunction was granted against all the parties, restraining them from “further operations on the mines and land in the bill described, and from removing any of the ore already taken out of the mine:” and there was a further order, that the sheriff should seize into his possession the said ore, and keep the same from waste, unless the plaintiffs and *314William Davidson should agree as to the terms on which the ore should be worked up, and the proceeds divided; in which case the sheriff was authorised to deliver the ore accordingly.

(jefen(jan(:s answered on the 30th of August, 1844. William Davidson admits that he was once the owner of the lands in question. But he says, that, shortly previous to the sale and conveyance to Curtis, Hyde, and Talmadge, as mentioned in the bill, he assigned and conveyed those lands, and all his other property to Washington Morrison as a trustee, in trust to secure and pay certain debts in the deed mentioned, and more particularly a very large debt which he, Davidson, then owed to the Bank of Newbern, and for which the plaintiff, Irwin, was his surety; that, at the time of the execution of the assignment, it was understood and informally agreed by the creditors and trustee, that he, Davidson, might effect sales of the estate, and especially of the gold mines, as he might deem to the best advantage, provided, that the trustee should approve the contracts, and that the purchase moneys should be paid to the trustee, so that the same should be duly applied to the satisfaction of the debts. He states that under that authority, he contracted with Curtis, Hyde, and Talmadge (who were associated with others with a view to become legally incorporated as the Franklin gold mining company) for the sale ofthe land and mines in question, at the price of §25,000, in cash payable in certain instalments, and the further amount of §10,000 in stock of the corporation, when it should be recognized; that he communicated to his vendees the slate of the title before the sale, and that they were satisfied therewith, and understood that they could not get the legal title unless the trustee should approve of the contract, and then, not until they should have paid to him the purchase money; that Morrison did approve of and confirm the sale, and that he received at various times, payments on account of it, amounting, in the whole, to §20,000, but that the remaining §5000 of the purchase money, has never been paid, and is still due with the interest thereon, nor did any certificate of stock ever issue to him; that the corporation, in fact, consisted of the same asso*315ciaiion of parsons, with whom he contracted, with the tion of himself; and that Curtis, Hyde, and Talmadge conveved to the corporation, with the full understanding that the 1 r. . „ ,. . -r corporation was to make the residue of the payments' for the purchase money. The answer states, that all the forgoing circumstances were well known to the plaintiff, Irwin, at, or shortly after they occurred; and that, at the time of the sheriff’s sale, notice was distinctly and publicly given, that a large sum remained unpaid of the purchase money, and that the legal title of the premises would not be conveyed until payment thereof, nor possession given until the balance should be paid or realised out of the property; and both of the plaintiffs fully knew all the said facts and circumstances. The answer admits, that this defendant was a stockholder and manager of the corporation, and that, after the sheriff’s sale, the operations of the company ceased, and that he has continued in possession ever since, for his own use, and claiming the profits in discharge of the sums due, as aforesaid, for the balance of the purchase money, and the stock in said company, which he was to have.

The answer then states, that the reason why the defendant did not sooner answer was, that there had been propositions of compromise pending between the parties, in which a sale to a third person was projected at the price of f>25,000; out of which the debt of the plaintiffs on the Franklin gold mining company was to have been paid, leaving the residue for this defendant. The defendant denies that the lease to his daughter was of his contrivance or by his direction, to defeat the injunction.

Sarah Davidson, by an answer admits, that she took the lease from Jane Dunn, as charged in the bill; but denies that it was a contrivance to evade the injunction, and says that she took the lease, because she believed Dunn had the title to the premises, and for the bona fide purpose of working the mine.

Glenn answers that he has no interest in the premises, and was employed by the other defendants, as a miner, to conduct the work.

*316Upon the answers, the defendants moved to dissolve the in-But the court refused the motion, and ordered that si should be continued to the hearing, unless one or more of (jle ¿efen(jants WOuld give bond, with approved sureties, in the penal sum of $10,000, with condition to perform such decrees, as should be made in the case against either of the defendants for the profits, arising from working the mines in the pleadings mentioned. From that decree the defendants appealed.

Iredell fur tne plaintiffs.

Hoyden for the defendants.

Ruffin, C. J.

The court is of opinion, that the decree is erroneous. The bill is not founded upon an equitable title. It proposes to state a legal title in the plaintiffs, and assumes that they could undoubtedly recover at law, if they chose to bring an ejectment. The whole purpose of coming into this court, as appearing upon the bill, is to obtain an account of the ore already dug, and the profits made therefrom, which the plaintiffs claim as the legal owners, and for an injunction against further working the mines, upon the ground that the defendants, by reason of their insolvency, will not be able to pay the damages, which the plaintiffs may recover at law, as legal owners. No privity between the parties is stated, but the defendants are mere trespassers. With respect to the first object of the bill, namely, the account, it is to be observed, that we have nothing to do at present. For although the plaintiffs be entitled to a discovery as to the profits, and also to an account and relief by a decree for payment, yet it does not follow, that they are entitled to have, or, rather, to hold up an injunction, indefinitely, against a person, who is in the exclusive possession of the premises. The general principle is, that a Court of Equity takes no jurisdiction in cases of mere trespass, not even by granting a temporary injunction.

But it is admitted, that in cases of mines, timber, and the likej when the trespass consists in acts, by which the substance pf the estate is destroyed or carried off, there is an established *317exception, and .that injunctions have been granted to restrain the continued commission of the trespass, upon the grounds that it is an injury of the nature of destructive waste, and irremediable mischief to the substance of the inheritance.

But it is plain, that the jurisdiction to restrain, trespasses, like that to restrain nuisances, is not an original jurisdiction of the Court of Equity, which enables this court, under the semblance of preventing an irreparable injury to a legal estate, to take a jurisdiction of deciding conclusively upon the legal title itself. Therefore, in such case, the plaintiff ought to establish his title at law, or show a good reason for not doing so; and if he will not,- this court cannot undertake, against a defendant’s answer, to try the questions of title and trespass and nuisance. Drewry on Injunctions, 238. In Chalk v. Wyatt. 3 Mer. 633, the defendant, who claimed as lord of the manor, was removing earth, shingles, and stones, from under a bank belonging to the plaintiff, which protected his land against the irruptions of the sea, and Lord Eldon granted the injunction, in consideration of the irreparable injury the plaintiff- was likely to sustain ; but he said, at the same time, that he would not have granted it, if the plaintiff had not established his right at law by an action, which he had previously brought and tried. However, it seems right to give an injunction even before a trial at law to prevent such irreparable mischief, as, without the interference of the court, would be done before there could be a trial at law. But it is manifest, that, except in cases where Equity assumes jurisdiction to prevent multiplicity of suits, or on other peculiar ground, the relief by injunction against trespass upon alegal owner ought only to be granted in aid of the defective legal remedy, and not to supercede the jurisdiction of the courts of law over a question purely legal; and, therefore, that the Court of Equity should only grant the injunction, where the plaintiff is endeavoring to establish his title at law, and until he should have had a reasonable time allowed for that purpose. Hence, Mr. Drewry, page 1S6, observes, that, in such cases, where, from the nature of the circumstances, very great mischief may result *318to the defendant from the injünction being held lip too ioftgj tbc interposition of the court must be with considerable pressure, that, on the part of the plaintiff, there, shall be no delay g0jng t0 trial j and unless some means of procuring a speedy trial are insured, the court will not sustain the injunction. In the present ease, it seems extraordinary, that the plaintiffs have brought no action of ejectment, from the time they took the sheriff’s deed in January, 1829, until last August, when this order was made, a period-of more than five years and a half; during all which time, the defendant has been in the exclusive possession, insisting upon an equitable right in himself, and a legal title in his trustee. No reason is given for this singular conduct, but one in very loose terms, intimating, however, sufficiently for us to understand, though vaguely, that the defendant held the possession either upon some agreement or understanding — perhaps not very definite —that the plaintiff’s purchase and conveyance from the sheriff should stand only as a security for the debt the company owed them, or that the defendant should pay them and take their title. Enough does not appear in the bill to authorise one to say, that is its statement; if it had, perhaps it would be difficult to sustain the injunction at all, as it would show an equitable interest in the defendant. But unless something of that kind iJs to'be inferred from the bill, it sets forth nothing as an excuse for not having sued at law: it holds forth no purpose of the plaintiffs to sue at law ; and the order of the court lays them under no obligation thus to sue. What, then, is to be the effect of the decree in this suit? Either' this court must, upon the hearing,-try the legal title, and decree, upon the ground that it is in the plaintiffs, that the defendants surrender the possession to them, and thus turn this writ into an ejectment,-strictly speaking, or the defendant must be left in possession of the premises, without being decreed to do any thing, but with an injunction upon him in the negative, that he shall refrain from further operations on the mine and land perpetually. Such a decree as the former has been often refused for this court will not sustain a mere ejectment bill.- And a decree *319of the latter kind, we have never known to be even asked for. It would be inconsistent with first principles. For it would leave the plaintiffs still under the necessity of going to law to recover the possession, with liberty to the defendant, ofcourse, to shew that they had not the legal title ; and the consequence might be, that persons, who turned out to have no right themselves, would have an injunction over anotherperson, restraining him perpetually from all use of the property in his possession. The court-upon the hearing, therefore, would be obliged to direct an action at law, and a trial of it within a reasonable time. And in a case of this kind, where the mines may be injured by suspending operations, and the steam engines and other machinery be ruined by not being kept in useandrepair? the plaintiffs ought to be required to speed a trial, even if the application were recent after the injury alleged. But, certainly, after so great a lapse of time as five years and a half, it is wrong to keep up an injunction indefinitely, without an offer on the part of the plaintiffs, or a requisition on the part of the court, that a suit should be brought. And, thus viewing the case, the insolvency of the defendant becomes immaterial. Indeed, it is still more oppressive to a person in that situation, than if he were better off, to hold over him an injuction indefinitely, although the plaintiff will not, as he rnight, establish his title at law, and turn the defendant out of his possession.

The case has thus far been considered, as it is made by the plaintiffs themselves in the bill. The answer makes a pase equally strong against the plaintiffs, though upon different principles. According to the answer, the plaintiffs, it is true, could not maintain an action at law, as they have not the legal title, but it is in Morrison, the trustee. Therefore, the plain,tiffs had a right to come here in the first instance, if they had stated their case properly in the bill. But, then, if they rely on that disclosure in the answer, they must submit to all the other consequences of that statement. The legal title is held by the trustee for the benefit of both the defendant and his vendees ; and as between the defefidant and his vendees, as thp *320legal title was purposely retained as asecurity for the purchase money, the defendant is looked ou in this court as an equitable mortgagee, and as such had a right to enter into possession of premiseSj as the means of compelling the mortgagor to pay the debt, or asatho means of raising it out of the profits of the estate. If, then, the interest of the Franklin gold mining company was the subject of sale under execution, the plaintiffs bought subject to the same equity which affected the company. Freeman v. Hill, 1 Dev. & Bat. Eq. 389; and, indeed, the answer states that they had distinct knowledge of all the circumstances. Therefore, as the defendant has the superior equity to be satisfied his debt for the residue of the purchase money, he may avail himself of his right as equitable mortgagee, and of the legal title of the trustee, to retain the possession unless the plaintiffs will redeem by paying the principal, interest, and costs, due him. We speak thus upon the supposition, that the debts secured in the defendant’s assignment to Morrison have been paid, and that the trust resulted to the defendants; which, though not positively stated, we collect from the answer to^be so, as the defendant speaks of the unpaid balance of the purchase money being his own. As to the stock in the pompany, which the defendant was to have, we presume that is now nothing, as we understand from the circumstances, rather than from any particular statement in the pleadings, that the company is one of the many broken companies or bubbles of its day, in which the stock is not worth a copper. But, for the money balance of the price, certainly, the defendant has a right, as the title is situated, to look to the property as a security, and, if so, his right is, to that extent, preferable to that of the plaintiffs. The circumstance, that the defendant became a stockholder in the company, makes no difference, for each stockholder has a capacity, as an individual, to contract with the corporation ; and it does not appear that the stockholders were, by the charter, rendered personally liable for the debts of the corporation. It is true, also, that, even as mortgagee in possession, the defendant might he *321restrained from doing any act wilfully to the destruction or detriment of the estate, as felling ornamental trees, or making the mines ruinous by not keeping proper props, or removing rubbish, or the like; because the land is only a security to the mortgagee, and is considered in this court as otherwise being the property of the mortgagor. But the mortgagee is doing nothing wrong in merely working the mine, and thereby receiving money to be applied in sinking the mortgage debt. Such is the case before us ; for the bill alleges no improper act in the defendant in the mode of working the mine, but .it is merely founded on the allegation, that the plaintiffs have the title, and that the defendant is insolvent, and therefore cannot answer the plaintiff’s damages arising from his trespass. But until the defendant’s debt has been paid, his insolvency can lay no foundation for stopping his operations ; because all his earnings are immediately accounted for as credits on the debt the estate owes him. So we think, in every point of view, the injunction should have been dissolved. A.s legal owners, the plaintiffs ought to have brought suit at law long ago, and asked only for an injunction until a trial could be had. As mortgagors, or the assignees of a mortgagor, or of one treated in equity as a mortgagor, they should have filed their bill to redeem, and offered to pay the principal and interest due to the defendant. We speak in reference to the defendant, William Davidson, to whose situation alone these remarks are applicable.

As to the other defendants: Jane Dunn is in'default in not answering, and this appeal brings up no question as to her. To the defendants, Sarah Davidson and Glenn, it is now immaterial what becomes of the injunction, as the lease to tho former had expired before the motion to dissolve. But they were entitled, for tho foregoing reasons, to be lot loose by a dissolution of the injunction ; though not with costs, we think. For, notwithstanding the answers, we caunot shut our eyes to the admitted facts, that the original bill was filed on the 25lh of August, and between that day and the 3d of September, the *322defendant, Sarah Davidson, a single daughter of the origiual defendant, and an inmate of his house, took a lease for the premises; nor fail, as persons of common sense, to infer there-prom tflat the purpose was to enable her father to proceed in working the mine as he did before, only in her name instead of his own: especially as William Davidson expressly states his answer, that he has been in possession, ever since the sheriff’s sale, for his own use, as entitled to a balance of the purchase money out of the land. And we cannot understand the equivocation, on which the defendants, under such circumstances, can bring themselves to deny, that, in taking the lease from Dunn, they had it as an object, to evade the injunction. We cannot doubt, that it was an artifice in fraud of the process, and therefore we think that none of the defendants should be entitled to costs on the dissolution of the injunction.

This opinion will be certified to the court of equity; that further proceedings may be had in the cause accordingly.

Per Curiam, Ordered accordingly.