#### GEORGE T. CHANDLER v. H. C. CAMERON and CARL CAMERON.

(Filed 19 March, 1947.)

1. Injunctions § 8—

Defendants claim under a registered paper writing insufficient to constitute a deed, but effectual in law as a contract to convey the merchantable timber on the tract of land in question. The instrument was executed by only one tenant in common, but defendants contended he was acting for himself and as agent for his cotenants. Plaintiff claims under a subsequently executed timber deed executed by all the tenants in common. *Held:*On the record plaintiff has a *prima facie*title to at least a two-thirds interest in the timber, and he is entitled to have the temporary order restraining defendants from further cutting and removing timber continued to the hearing. G. S., 1-487.

2. Injunctions § 8 54 —

Under G. S., 1-488, the judge may enter an order permitting the cutting of timber pending final determination of the controversy upon the filing of bond only in the event the court finds that one of the parties is clearly an interloper without a *bona fide*claim of right and that the other party is acting in good faith under a title *prima facie*valid, and it is error for the court to enter such order when the court fails to make such findings but finds to the contrary that the party against whom the order is entered is acting in good faith under a paper writing purporting to convey an interest in the timber.

*2343. Vendor and Purchaser § 3—

A recorded paper writing executed by one tenant in common which purports to convey the merchantable timber on lands held in common and which provides that the balance of the purchase price should become due upon delivery of timber deed, though ineffectual as conveyance because of the want of a seal, is nevertheless effective as a contract to convey, enforceable in equity, at least against the tenant executing same and those claiming under him by subsequently recorded conveyance.

Appeal by defendants from *Williams, J.,*in Chambers, 30 December, 1946. From Harnett.

Modified and affirmed.

Civil action to restrain an alleged continuing trespass on real property.

On 14 November, 1946, Eugene, Lewis, and Edward C. McLeod were the owners, as tenants in common, of a certain tract of land in Harnett County on which there was valuable timber. On that date Eugene McLeod executed and delivered to H. C. Cameron a paper writing in words and figures as follows :

“We do hereby sell and convey all the merchantable timber to H. C. Cameron for the sum of $1,500.00, receipt of $1.00 is hereby acknowledged, the balance of $1,499.00 will be due and payable by H. C. Cameron upon delivery of timber deed.. The said timber being located on the lands of L. M. McLeod Heirs and adjoining lands of Hoyle Kelly, Gales and Layton, and others, and measuring 8 in. dia.' This conveyance is made this Nov. 14, 1946.”

This instrument was duly recorded 16 December, 1946. Defendants allege and contend that Eugene McLeod, in executing this paper writing, was acting for himself and as agent of his cotenants.

On 14 December, 1946, the three McLeods, tenants in common, executed a timber deed conveying the merchantable timber on said land to plaintiff. This deed was filed for registration 18 December, 1946, and recorded 19 December, 1946. At the time of the execution and delivery of this deed defendants had entered upon said land and were cutting and removing the timber therefrom.

Plaintiff instituted this action for a permanent injunction. A temporary restraining order was issued. On the return date of the notice to show cause the judge, “being of the opinion and so finding on this showing that the plaintiff has legal title to the timber subject to such rights as the said paper writing may give to the said H. O. Cameron, and that the said H. O. Cameron bona *fide*claims under said paper writing,” entered an order continuing the restraining order to the final hearing but providing, however, upon the execution of bond in the sum of $3,000, the plaintiff may “enter upon said lands and begin cutting said timber.” Defendant excepted and appealed.

*235
      *Charles Boss for plaintiff, appellee.*

*M. 0. Lee and K. R. Hoyle for defendants, appellants.*

Barnhill, J.

Tbe contention of tbe defendants tbat tbe court below should have dissolved tbe temporary restraining order cannot be sustained. Tbe plaintiff bolds a deed wbicb, on tbe face of tbe record, conveys at least a two-tbirds interest in tbe timber. Whether tbe instrument relied on by defendants in fact creates a prior claim to all tbe timber is yet to be decided. While we express no opinion in respect thereto, we concur in tbe conclusion of tbe court below tbat plaintiff has a *prima facie*vested interest wbicb should be protected pending tbe final determination of tbe issues raised by tbe pleadings.

Thus tbe one question presented for decision is this: Did tbe court below, on tbe facts found, bave authority to permit plaintiff, upon tbe execution of tbe required bond, to enter upon tbe premises and cut tbe timber thereon pending final determination of tbe action? We must answer in the negative.

In 1901 tbe law controlling tbe right to' injunctive relief against a continuing trespass in tbe form of cutting and removing timber trees was substantially modified. Chap. 666, P. L. 1901. (For a brief review of tbe law of injunctions in such cases prior to tbat date see *Lumber Co. v. Cedar Co.,*142 N. C., 411.)

Section 1 of said Act, now G. S., 1-487, provides tbat whenever in an action to restrain a continuing trespass in tbe form of cutting and removing timber trees “tbe court finds as a fact tbat there is a *bona fide*contention on both sides based upon evidence constituting a *prima facie*title” tbe judge shall not permit either party to cut said trees (except by consent) until tbe title to said trees has been finally determined in such action.

Section 2 thereof, now G. S., 1-488, vests tbe judge with discretionary power to permit tbe party who convinces tbe court of tbe *bona fides*of bis contention and offers evidence “showing a *prima facie*title” to cut the timber in controversy pending tbe action upon tbe giving of bond as required by law, provided tbe court finds as a fact tbat tbe contention of tbe adversaiy party “is not in good faith and is not based upon evidence constituting a *prima facie*title.”

Since tbe enactment of this statute tbe cutting of timber wbicb is the subject matter of tbe action may be permitted only in tbe event one of tbe parties is clearly an interloper without a *bona fide*claim of right and tbe other acts in good faith under a title *prima facie*valid. To support an order to tbat effect tbe judge must so find and incorporate such finding in bis judgment. *Johnson v. Duvall,*135 N. C., 642; *Lumber Co. v. Cedar Co., supra; Kelly v. Lumber Co.,*157 N. C., 175, 72 S. E., 957.

*236Here tbe court below made no such finding. On tbe contrary it found that tbe defendants are acting in good faitb under tbe paper writing-executed by Eugene McLeod. Tbis instrument is not valid as a conveyance for want of a seal. It will, however, operate as a contract to convey, enforceable in equity, at least against Eugene McLeod and those claiming under him by conveyance subsequently recorded. *Willis v. Anderson,*188 N. C., 479, 124 S. E., 834; *Robinson v. Daughtry, 171*N. C., 200, 88 S. E., 252; *Vaught v. Williams,*177 N. C., 77, 97 S. E., 737; *Lumber Co. v. Corey,*140 N. C., 462. Hence tbe provisions of G. S., 1-487, are controlling.

It follows that tbe judgment below must be modified in accordance with tbis opinion. As so modified it is affirmed.

Modified and affirmed.