Opinion
(Filed 8 January, 1932.)
Injunctions B b — Held: plaintiff could not enjoin sale of land under order of court, his remedy being by motion in the original cause.
Where land embraced in a deed of trust has been ordered sold by final judgment the fact that it was under lease will not prevent the dissolution of a restraining order, the sale being subject to confirmance by the court, the remedy of the plaintiffs, if they are entitled to any, being by order in the original cause.
APPEAL by plaintiffs from Oglesby, J., at Chambers in Concord, 21 February, 1931. Affirmed.
Armfield, Sherrin Barnhardt for plaintiffs.
H. S. Williams and J. Lee Crowell for defendants.
This is an action to restrain the defendant, B. W. Blackwelder, commissioner, from selling the lands described in the complaint, under a judgment and decree of the Superior Court of Cabarrus County, rendered at February Term, 1929, in an action between the plaintiffs and the defendant, Walter J. Barnhardt.
This action was begun on 31 January, 1931, and was heard pursuant to an order to show cause why a temporary restraining order dated 2 February, 1931, should not be continued to the final hearing.
From judgment dissolving the temporary restraining order, plaintiffs appealed to the Supreme Court.
In an action pending in the Superior Court of Cabarrus County, at February Term, 1929, between the plaintiffs in this action and the defendant, Walter J. Barnhardt, there was a final judgment, and a decree that the lands described in a deed of trust executed by plaintiffs to secure their note held by the defendant, Walter J. Barnhardt, be sold and that the proceeds of said sale be applied as therein directed. B. W. Blackwelder was appointed in said decree as commissioner to sell said lands. In accordance with certain provisions of said decree, the said B. W. Blackwelder, commissioner, on 1 January, 1931, advertised said lands for sale on 2 February, 1931. This action was begun on 31 January, 1931, to restrain the said commissioner from selling said lands in accordance with the decree rendered at February Term, 1929, of the Superior Court of Cabarrus County.
A temporary restraining order signed on 2 February, 1931, was dissolved at the hearing on 2 February, 1931. Plaintiffs excepted to the judgment dissolving the temporary restraining order and appealed to this Court.
We find no error in the judgment dissolving the temporary restraining order. The fact that the defendant, W. J. Barnhardt is in possession of the lands described in the deed of trust, under a lease executed by the plaintiffs, is immaterial. No sale of said lands will be consummated until same has been confirmed by the Superior Court.
If plaintiffs are entitled to any relief on the facts alleged in their complaint, such relief may be had by an order in the action in which the decree for the sale of their lands was rendered. It cannot be had in this action. The judgment is
Affirmed.