JAMES O. MARTIN against C. L. COOK AND OTHERS.
A bill, which seeks to rescind a contract in part, without restoring the opposite party to ihe condition he occupied previously to plaintiff’s connection tion with him, is radically defective.
' An injunction, except in cases of waste and irreparable injury, is used as an auxiliary only to some primary equity.
Cause removed from the Court of Equity of Wilkes county.
The plaintiff, in his bill, alleges that the defendant, Obadiah Sprinkle, was indebted to Jenkins & Roberts, in a bond, for $1963, dated 16th March, 1854, and on the 27 th of March, 1855, they took from said Sprinkle a deed of trust (executed to defendant Cook) to secure the same, conveying to said Cook two tracts of land, (describing them,) also 100 head of hogs, Blacksmith’s tools, two stills and other personal property ; that on the 18th of January, 1858, in order to oblige Sprinkle, who was his neighbor, the plaintiff gave Jenkins & Roberts his own bond for $1500, and took an assignment of the bond from Sprinkle without recourse to them, also an assignment’of the deed of trust, likewise without recourse; that said deed of trust was fraudulent and void, in law, being intended to enable the said Sprinkle to hinder and delay his creditors; that after making the said deed of trust, judgments were taken in the County Court of Mecklenburg and executions issued, under which the said land was sold, and that the personal property conveyed in said deed, he has never been able to find.
The bill further alleges that suit has been brought on the bond which he gave Jenkins & Roberts, and judgment taken in the County Court of Davidson, on which execution has issued, and he is threatened with a sale of his property to satisfy the same.
The bill prays for an injunction to restrain the defendants from proceeding to collect the said execution.
The defendants demurred to the bill. There was a joinder n demurrer, and the cause being set down for argument, was ent to this Court.
*200Boyden, for the plaintiff.
Bwrb&r, for the defendants.
MaNly, J.
The plaintiff’s equity for the relief he asks, depends upon his willingness to rescind the contract of which he complains, m toto, and restore the parties to the condition they occupied previous to their connection with him. This he does not proffer to do, and in this respect, the frame of. the bill is radically defective.
The injwnetion, (except in cases of waste and irreparable injury,) is used as an auxiliary, only, to some primary equity. This primary equity ought to be set forth and insisted upon as the ground of the Court’s jurisdiction. The error in the bill is one into which it seems the profession, in this State, is prone to fall. Their attention has been called to it recently in several cases; Eborn v. Waldo, 6 Jones’ Eq. 111;, McBae v. Railroad Co., 5 Jones’ Eq. 395; Scofield v. Van Bokkelin, Ibid. 342; Patterson v. Miller, 4 Jones’ Eq. 431.
Per Oueiam, The demurrer should be sustained and the bill dismissed.