McQuarrie v. Hildebrand

23 Ind. 122

• Court: Indiana Supreme Court
• Decided: November 15, 1864
• Status: Published

Opinion

Rat, Ch. J.

This action was brought by the appellee to set aside a sale and conveyance of land, and for an injunction. An interlocutory order of injunction was obtained, from which the appellants appeal to this court.

■ The complaint avers that Hildebrand conveyed to Mc-Quarrie certain described real estate, and received therefor his ten promissory notes of $500 each; that Hildebrand retains possession of said real estate, and that at the date of said conveyance “he was very weak and feeble, both in mind and body, and wholly unfit to transact business;” that said McQuarrie $ Long were partners, and his attending physicians, and induced him, by fraud, to make said conveyance; that they have cut a large quantity of wood on said farm, and have hauled a part of it away, and if not restrained, he believes they will haul away immediately two hundred cords, and that the cutting and removal of the timber will materially diminish the value of said land; that said McQuarrie $ Long threaten to take immediate possession of said premises. There is'an averment of the tender of the notes and a prayer for rescission. This complaint is signed by the counsel of Hildebrand, and is not verified by affidavit as required by the statute. 2 Gr. & H. 134, sec. 138.

But we do not consider the facts averred sufficient to authorize the court to grant an injunction. The injury, resulting from the loss of possession of the premises, hás its adequate legal compensation in a judgment for the rental value thereof. • No insolvency having been averred, the allegation that The cutting of timber “will materially diminish the value of said land,” certainly 'furnishes no ground for the interposition of the court by the exercise of its preventive power. Our statute only authorizes the court to -issue this writ, to restrain some act, the commission of which “ would produce great injury to the plaintiff.” The well-established rule of equity has been, that the writ would only issue to prevent “irreparable injury.” The statute must not be construed as having utterly abolished this rule, and transformed a, reluctant writ, called into use only in moments of extreme danger, into a volunteer whose ready power may be invoked upon an apprehension of injury for which a rule of compensation at law has been fixed. In the case under consideration, the appellants filed their several answers, under oath, denying every material averment upon which the prayer for relief was founded. The record shows a submission to the court, and contains no affidavits in support of the application. It seems clear that, under such a state of pleadings in this case, the injunction should have been denied.

Newman &¡ Newman and N. N. Johnson, for appellant. Morton Kibby and J. P. Siddall, for appellee.

The injunction is dissolved, and cause remanded.