#### North’s Ex’r v. Perrow and Others.

January, 1826.

Injunction — Motion to Dissolve — What Defendant itust Shew.* — On a motion to dissolve an injunction, it ought not to be required of the defendant, to invalidate, by full proof, the allegations of the bill: but tbe burthen of proof lies on the plaintiff to support them. All that is required of the defendant, is, to shew that the evidence of the plaintiff is entitled to no credit.

This was an appeal from the Chancery Court of Cynchburg.

Anthony North filed his hill, alleging, that on the 10th day of March, 1823, Thomas A. North conveyed by deed of trust to Grief Barksdale several slaves and other property, for the purposes therein mentioned; which deed was recorded as to Thomas A. North, on the 11th day of the same month, and as to the other parties, on the 12th day of January, 1824 ; that on the 19th day of February, *1824, the trustee, having advertised the said property, sold all of it that he could get, at the house of the said Thomas A. North ; and the conplainant purchased, among other property, a negro man named George, who was delivered to the complainant and carried to his residence in another county; that the said slave returned, by permission of the complainant, to his former residence, for a short time, when he was seized by Heyden, a Deputy Sheriff of Campbell county, under an execution in favour of Stephen Perrow against the said Thomas A. North; that the said Perrow threatens to indemnify the Sheriff, and force a sale of the said slave; that ihe slave possesses a peculiar value to the complainant, having been raised in his family, and if he should be sold, he may be carried off to foreign parts, or exposed to cruelty and hardships, against which no legal remedy could guard. He therefore prayed, that Perrow, Heyden and Hunter, the Sheriff of Campbell county, might be made defendants ; and that they should be enjoined from selling the said slave, and be compelled to restore him to the complainant.

The Chancellor refused the injunction, but it was awarded by a Judge of the Court of Appeals.

The complainant died, and the suit was revived in the name of his executor.

Perrow answered, (protesting against the jurisdiction of the Court,) that the judgment on which the said execution issued was for money which the defendent had been compelled to pa y as the surety of the said Thomas A. North: that the slave in question, was not, at the time, the said execution was levied, the property of the complainant; but, so far as the creditors of T. A. North were concerned, he was his property : that the deed of trust mentioned in the bill, was fraudulent, and made with the view of protecting the property of the said T. A. North from the claims of his creditors, and not founded on any valuable consideration, or if any, on a grossly inadequate one : that by the deed, nearly the whole of T. A. North’s *estate, real and personal, was conveyed for the benefit of the complainant that the complainant was the father of the said T. A. North, and the latter having become much involved in debt, they combined and confederated together, to shelter and protect the property of the son from the claims of his just creditors ; and the said deed of trust was the fruit of this combination : that the property sold under the deed of trust, was fairly worth from five to six thousand dollars ; but it was so obvious to the company that attended the sale, that the deed was fraudulent, that no person bid for any part of it, but the complainant, who pur*12chased it;for about three thousand dollars, except a few hogs, and a small mare, which were bought by one of his sons: that a son-in-law of the complainant was the crier at the sale, and the greater part of it was knocked out to him at his first bid: that after the sale, the complainant permitted the said T. A. North to retain possession of the land, and all his household and kitchen furniture : that as to the slaves, they were removed to the county of Charlotte, in a few months af rer the sale, by the complainant, but he immediately sent back to the said T. A. North, the same number of other slaves, of equal value, which have ever since remained in the possession, and under the control, of the said T. A. North. The defendant therefore affirmed, that the said deed was fraudulent and void against creditors.

Affidavits were taken to prove the fraudulent intention with which the conveyance was made. The deed of trust recited, that Thomas A. North was indebted to Anthony North, in the sum of $3000 ; to satisfy which, the property, real and personal, therein mentioned, was conveyed in trust to Grief Barksdale.

The Chancellor dissolved the injunction ; and at a subsequent day, the complainant moved the Court to reinstate it. This motion was rejected, on the ground of want of jurisdiction, as the remedy at law was complete.

From this order the complainant appealed.

*Johnson, for the appellant.

Leigh, for the appellee.

*

Injunction — Motion to Dissolve — What Defendant Must Shew. — It is true that upon a motion to dissolve an injunction the defendant is considered the actor, and upon him rests the burden of disproving the equities of the bill. Such full and positive proof, however, is not exacted as would be necessary upon a final hearing of the cause, since the effect of requiring such strictness of proof might be to prevent a dissolution until the final hearing. And for the purposes of such motion, defendant's answer is to be taken as true, so far as responsive to the allegations of the bill, and so far as it fully and fairly meets complainant’s equities without evasion, and without passing over material allegations. Ingles v. Straus, 91 Va. 223, 21 S. E. Rep. 490, citing principal case as its authority.

The settled doctrine is that, where a motion to dissolve an injunction is on the bill and answer, and the answer denies all the equity of the bill, the injunction is dissolved, of course except when from the bill and answer, special reasons may appear for continuance. Moore v. Steelman, 80 Va. 340, 341, citing principal case as authority.

And in M’Coy v. M’Coy, 29 W. Va. 187, 2 S. E. Rep. 823. it is said: "If the grounds for asking an injunction are not, as stated in the bill, such as to justify the awarding of an injunction, the defendant, before moving to dissolve it, should lile his answer sworn to. If this answer fully and fairly meets all material allegations in the bill, without evasion and without passing over any material allegation, it must be taken as true as far as it is responsive to the bill, and if, when so regarded, it leaves no reasonable doubt on the mind of the court as to the impropriety of continuing the injunction, it should be at once dissolved on such motion. Otherwise it should be continued to the hearing, of course, the facts thus regarded as true by the court, as stated in the answer, must be supported by affidavit to the answer, and if the answer, as in the case before us, does not verify these facts, but simply states that the respondent believes them to be true, it will not be sufficient. See Miller v. Washburn, 3 Ired. Eq. 161: Brewer v. Day. 23 N. J. Eq. 418; *North v. Perrow. 4 Rand.*1; Brown v. Stewart. 1 Md. Ch. 87. If the answer does not on these principles justify a dissolution of the injunction, upon motion to dissolve it, it may be supported by affidavit or depositions.'’

The principal case is also cited in Gallaher v. Moundsville, 34 W. Va. 736, 12 S. E. Rep. 861.

See further, monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

January 27.

The PRESIDENT

delivered his opinion, in which the other Judges concurred.*'

Upon the proofs in this case, it is unnecessary to decide the question of jurisdiction. The evidence in the record does not only raise the suspicion of fraud in the deed (as was admitted by the counsel for the appellant,) but is so strong, as, in mv opinion, to render it very improbable, if not impossib’e, that it c*n be refuted by any testimony hereafter to be taken. On a motion to dissolve, it ought not to be required of the defendant,, to invalidate, by full proof, the allegations in the bill. The burthen of proof lies on the plaintiff to support them. Having obtained the injunction on the prima facie evidence of his oath, or other proofs, all that is expected of the defendant is, to shew that it is entitled to no credit To wait for full proof, before the injunction is dissolved, would produce great delay and much mischief. In no case, could the injunction be dissolved until the cause was ready for a final hearing; and in every case, by an appeal from the decree, the injunction would be continued until the final decision of the case in this Court There might be more hesitation in affirming the decree of the Chancellor, if the appellant would be deprived thereby of his right to produce further evidence ; but that not being the effect of the affirmance of the decree here, for the reasons stated the decree is affirmed.