Faison v. . Hardy

Citations

• 19 S.E. 91
• 114 N.C. 58

Syllabus

<p>Injunction- — Degree of Proof Necessary to Obtain Interlocutory Injunction — Conflicting A ffidavits — Parol Trust.</p> <p>1. Where a plaintiff claiming- an equitable interest in land and seeking to restrain its sale under a deed of trust asks for an account and establishes a prima facie case which is not rebutted by the defendant, ' “a serious controversy” has arisen, which entitles the plaintiff to an'injunction and account.</p> <p>2. A party seeking an interlocutory injunction is not required to establish his right with the same precision and certainty that is necessary on the final hearing; therefore, while on the trial of an issue as to the existence of a parol trust the plaintiff must produce strong and convincing proof of an agreement amounting- to a trust existing at the time, the rule does not ajiply to the intensity of proof to be offered in the prosecution of a remedy ancillary to the real object of the action.</p> <p>Where a purchaser of land executed a trust deed to secure the purchase-money under which the trustee advertised the land for sale, and F. brought an action to restrain the sale and for an accounting, alleging- in his complaint that there was a parol trust in the land whereby he became the owner of the equity of redemption therein, and claiming that the notes were entitled to credits other than had been given, and his averments were corroborated by affidavits but denied by the answer of defendant and affidavits in support thereof; Held, that the Court properly granted an interlocutory injunction.</p>