#### MARCUS C. BOGEY *against*WILLIAM H. SHUTE, SENIOR.

In a bill for an injunction to restrain a person who is in the possession of a tract of land, under an adverse claim of title, from cutting and carrying timber off of such land, it is not sufficient for the plaintiff to allege that the act complained of will be productive of irreparable injury, but the allegation must be attended with such a statement of facts, as will enable the Court to see that such would be the result.

Appeal from an interlocutory order of the Court of Equity of Craven County, at the Spring Term, 1854, continuing the injunction until the hearing of the cause, His Honor Judge Ellis presiding.

The bill was originally filed against Roderick J. Shute, to foreclose a mortgage made by him to the plaintiff, to secure the payment of certain debts therein mentioned, for which the plaintiff was the said Shute’s surety to several persons: which mortgage embraced three several tracts of land and divers articles of personal property. Roderick J. Shute died before he answered the bill, and the plaintiff got leave to file an amended and supplemental bill against William H. Shute, Jun’r, who was the heir at law of R. J. Shute, and against William H. Shute, Sen’r, who, it was alleged in this amended bill, claimed title to two of the tracts of land embraced in the mortgage deed, by a deed without any consideration, and which had been fraudulently ante-dated, so as to overreach the mortgage. Afterwards another amended and supplemental bill was filed against William H. Shute, Sen’r, reciting the foregoing bills and the proceedings thereon, and alleging that the defendant, W. H. Shute, Sen’r, had got possession of the two tracts of land above mentioned, and had cut down and destroyed, and was continuing to cut down and destroy much of the pine timber on these tracts. It was further alleged in *181this amended bill, that the land tvas sterile and not fit for agricultural purposes, and but for the pine timber upon it, was of very little value. This bill further alleges that the defendant is insolvent, and that unless he is restrained by the court from cutting down the timber and making waste of the lands in question, the plaintiff will be deprived of his security for the debts mentioned in the mortgage deed and will be exposed to irreparable loss. The prayer is for an injunction and for general relief.

The defendant, William H. Shute, Senior, answers both of ■ the amended bills. To the first, he answers and avers that the deed under which he claims title to one of the tracts of land mentioned, is bona fide, and for a valid consideration, and goes extensively into the history of the transaction in which this deed originated — he denies that it is antedated, but says that it is truly dated, and is in point of time prior to the mortgage deed of the plaintiff. He says he has had possession under this deed for several years. As to any other of the tracts than the one derived from one Lovick, he denies that he has in any way interferred with it, and disclaims all right, title, and interest in the same.

In his answer to the bill for the injunction, he recites and repeats the facts set forth in his former answer and further insists that the other property conveyed in the mortgage deed, is more than sufficient to secure the debts the plaintiff was liable for, as the surety of R. J. Shute and that these debts have been nearly paid off. He further insists that under the Act of Assembly of 1826, there is a presumption of payment or abandonment arising from the length of time and insists on the same as a bar. He denies that he has committed spoil or destruction on the premises : admits that he has cut timber on the tract, but says that believing himself to be the lawful owner of it, he has exercised this right with prudence and discretion. He denies that the land is valuable for the timber only, but says that it is fit for cultivation and that he *182has used it as such and that its value has not been impaired by anything that he has done. He denies further that he is insolvent.

'William H. Shute, junioi’, who is an infant, answered by his guardian professing to have no knowledge of the matters referred to and insisting that the plaintiff be held to proof.

Upon the coming in of the answers, the defendants moved for the dissolution of the injunction which had been issued since the last term of the court, but the court refused to dissolve and ordered the injunction to be continued over to the hearing. From which order the defendant Wm. H. Shute, senior prayed and obtained an appeal to this court.

*Green*for plaintiff.

*J. JI. Brycm*for the defendant.

Nash, C. J.

This case comes within the principle of Thompson and French against Williams decided at this Term, (ante, 116.) The injunction in this, as in that case was granted, not to stay waste, strickly speaking, but to restrain a simple trespass —and in order to bring it within the rule of Equity in such cases, the bill charges, that the defendant William H. Shute is insolvent, and that if he is permitted to go on and cut down the timber as he has done, the land will be injured, and he be unable to compensate the plaintiff for the damages he may recover. It is not sufficient for a plaintiff to state that the acts complained of will’ be attended with permanent results, destroying or materially altering the estate ; but the allegation must be attended with such a statement of facts, as to enable the Court to see that such would be the result. There is nothing in the bill here, to show that such would-be the case— that the injury would be irreparable. If there was any doubt upon the question, the answer has entirely removed it. The defendant William H. Shute sr. claims the land in dispute as Mss property — alleges that he is in possession, and has been for *183some time ; and has used the same as the owner thereof — hav» ing a due regard “to his own interest and right, and as any other manager of his own estate would have done as a prudent and careful owner. That while the trees standing thereon are valuable for timber — and this defendant hath to a very limited extent so used them — the land is valuable for agricultural purposes,” &c.; and he denies he is insolvent. In addition to all this, it appears from the bill, which was originally' filed to fore-close an equity of redemption, that two other tracts were mortgaged to the plaintiff; and the answer avers they are amply sufficient to repay the money due the plaintiff. So, that if the defendant W. ’ H. Shute were insolvent, the' plaintiff would lose nothing. In looking at the bill and answer as affidavits, containing the facts severally relied on by the parties, we have no doubt that the injunction ought to have been dissolved. We cannot sit here to try the title to land ; that is the province of a Court of law. Nor can we allow the power of the Court of Equity to be interposed in every case of disputed title to land — to stop agricultural pursuits. This would be the result in every case of disputed boundary, where one of the parties was in possession — using the land for farming purposes — if the injunction in this case were continued to the hearing.

There is error in the interlocutory order made below, and the injunction must be dissolved.

This opinion will be certified to the Court of Equity of Craven County, and the plaintiff must pay the costs of this Court.

Pise Cuexam. Decree accordingly.