{
  "id": 2091750,
  "name": "JUDSON KILPATRICK and others v. WILLIAM H. HARRIS",
  "name_abbreviation": "Kilpatrick v. Harris",
  "decision_date": "1867-06",
  "docket_number": "",
  "first_page": "222",
  "last_page": "224",
  "citations": [
    {
      "type": "nominative",
      "cite": "1 Phil. Eq. 222"
    },
    {
      "type": "official",
      "cite": "62 N.C. 222"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "1 Swan. 551",
      "category": "reporters:state",
      "reporter": "Swan",
      "opinion_index": 0
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T20:56:26.929259+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JUDSON KILPATRICK and others v. WILLIAM H. HARRIS."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nThe main allegation upon which the plaintiffs base their claim for injunctive relief is, that the defendant had not made and is not able to make to them a good title for. the real estate mentioned in the bill. This allegation as to the ability to make a good title, is positively denied by the answer, and the defendant therein sets forth an abstract of his title, avers it to be a good and indefeasible one, and tenders what he says is a sufficient deed, to be delivered upon the payment of the purchase money. His Honor in the court below, deeming this a positive and une-quivocal denial of the ground of the plaintiff\u2019s equity, on motion of the defendant\u2019s counsel, dissolved the injunction which had been granted upon the filing of the bill. In this we think his Honor erred, for that he ought to have continued the injunction, not until the hearing but until there could be a reference to the Master and a report from him as to the sufficiency of the defendant\u2019s title. That such is the the English practice is shown by Adams\u2019 Equity, p. 84. A similar practice prevails in this State,, as appears from the case of Gentry v. Hamilton, 3 Ire. Eq. 376, in which the court says: \u201c It is a general rule in a suit for specific performance in which the single question is whether the vendor can make a good title, that the court at the present day directs a reference to the Master to inquire into the title, and this even without the consent of the other party. Brook v. Clarke, 1 Swan. 551; Shelton\u2019s case, 1 Ves. & B. 519. Atkinson, on \u2018 Title \u2019 226, says that either party to the suit is, as a matter of right, entitled to have a reference upon the title.\u201d\nThe interlocutory order dissolving the injunction must be reversed, and the cause remanded for further proceedings in the court below.\nPer Curiam.\nOrder accordingly.",
        "type": "majority",
        "author": "Battle, J. Per Curiam."
      }
    ],
    "attorneys": [
      "Strange, for the appellants.",
      "Brugg, contra."
    ],
    "corrections": "",
    "head_matter": "JUDSON KILPATRICK and others v. WILLIAM H. HARRIS.\nWhere a bill was filed by the purchasers for a specific performance of a . contract to sell land, which suggested that the bargainor could not make a good title, and prayed that until such was made the bargainor should be enjoined from enforcing a judgment obtained by him for the purchase money; and thereupon the defendant by answer tendered a deed which was filed therewith and was alleged to convey a good title; Held that the course of the court was not either to dissolve the injunction or to continue it to the hearing, but to continue it until a report should come in from the Master upon a reference to him as to the sufficiency of the title so tendered.\n(iGentry v. Hamilton, 1 Ire Bq. 876, cited and approved.)\nMotion to dissolve an injunction, heard before Foide, J., at Spring Term, 1867, of the Court of Equity for New Hanover.\nThe complainants set forth that the defendant had obtained and was enforcing against them a judgment at law upon a bond given for part of the purchase money of a tract of land which he had covenanted to convey to them \u201cin a few days, at most within a reasonable time;\u201d that they had demanded title to be made, and the defendant upon one pretext or another had refused to comply with his contract; that they were informed and believed that he -could not make an indefeasible title, and thereupon prayed for a specific performance and in the meantime for an injunction, and for other relief.\nUpon this they had obtained at chambers a preliminary injunction.\nThe defendant, after giving some account of his reasons for not complying before, tendered to the complainants a deed for the land bargained to them, averring that he had good and indefeasible title thereto. The deed was filed with the answer. Upon the coming in of this answer, his Honor, upon motion, ordered the injunction to be dissolved, and the complainants appealed.\nStrange, for the appellants.\nBrugg, contra."
  },
  "file_name": "0222-01",
  "first_page_order": 230,
  "last_page_order": 232
}