McCorkle v. . Brem , 76 N.C. 407 ( 1877 )

As a general rule an injunction will be refused when the answer fully and distinctly denies all the grounds on which the equity of the complaint is founded. This rule however is not inflexible, and the Court in the exercise of a sound discretion will view all the facts and circumstances surrounding each case and be governed accordingly. When it can do neither party any harm to grant the injunction, except merely delay to the hearing, and when a refusal to grant it would probably subject one of the parties to further litigation, cost and trouble, the Court will interfere by orders until the way is made plainer.

In the present case it appears from both complaint and answer that Thomas H. Brem did occupy a fiduciary relation to the plaintiffs as administrator of their ancestor, and that a large amount of assets came to his hands and that no settlement of the same has been yet had with the plaintiffs and that no account of said administration has been given except Brem's ownex parte statement filed with the Probate Court.

The plaintiffs have a right to a full investigation of these accounts, and they allege that said Brem after paying debts had a certain sum still in hand, and that he agreed with them to invest the sum, or a part of it, in a certain described lot in the City of Charlotte for their benefit, and that he did so except that he took the deed to himself absolutely.

The answer denies this allegation but it does appear from the answer that he purchased this particular lot subsequent to the time of the alleged agreement.

The defendants as the representatives of said Brem deny the agreement on information and belief only, whereas the plaintiffs testify to a contract made with them personally. These are matters fit to be investigated before further complications arise among the parties. Suppose the sale takes place and the proceeds are paid to Brem's heirs, and finally the plaintiffs establish their equity and recover the lot of land or its equivalent from the purchaser, it would be easy to see the difficulties added to the settlement of both estates and the wrong done to the purchaser and the probable loss of the purchase price to him.

Therefore to avoid troubles of this character we think His Honor should have continued the restraining order until the final hearing. There is error. Let this be certified.

Error.

PER CURIAM. Judgment reversed.