Armstrong Ex Rel. Martin v. Armstrong

52 S.E.2d 362, 230 N.C. 201, 1949 N.C. LEXIS 595

Opinion

BarNHill, J.

As testamentary trustee for Hettie George, tbe defendant, pending division thereof, is a tenant in common of tbe 38% acre tract of land claimed by movant and is in possession thereof. She cannot be dispossessed in tbe manner here attempted. Tbe movant’s proper remedy is by an action in ejectment.

An injunction is available in proper instances to preserve tbe status quo and protect tbe parties from irreparable injury pending tbe final determination of tbe action. Jackson v. Jernigan, 216 N.C. 401, 5 S.E. 2d 143; Young v. Pittman, 224 N.C. 175, 29 S.E. 2d 551. But it will not lie when there is a full, complete, and adequate remedy at law. Whitford v. Bank, 207 N.C. 229, 176 S.E. 740; Newton v. Chason, 34 S.E. 2d 70.

Nor may a restraining order be used as an instrument to settle a dispute as to tbe possession of realty or to dispossess one for tbe benefit of another. Jackson v. Jernigan, supra; Young v. Pittman, supra. Tbe right of possession to real property, as against one in tbe wrongful possession, is enforceable in an action at law. Controverted issues in respect thereto must be decided as in other civil cases.

Tbe contention that tbe defendant, by entering upon and cultivating said tract is a continuing trespasser cannot be sustained. A trespass is a wrongful invasion of tbe possession of another. Frisbee v. Marshall, 122 N.C. 760; Gordner v. Lumber Co., 144 N.C. 110; Tripp v. Little, 186 N.C. 215, 119 S.E. 225; Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804. Here it is expressly alleged in tbe petition that defendant herself is in possession. She is, as trustee, a tenant in common. Her cultivation of tbe soil works no irreparable injury to tbe freehold, and her action in so doing is not subject to injunctive restraint in this action.

It follows that there was error in so much of tbe order entered as undertakes to restrain defendant from cultivating tbe Sykes 38% acre tract “during tbe agricultural year 1949.” It must be modified accordingly.

Error.