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McLeroy vs. McLeroy.

We think that justice to all parties requires that this cause should undergo a thorough and deliberate investigation, and that the injunction should be retained until that takes place.

Judgment affirmed

EDWARD J. McLEROY, plaintiff in error, vs. ISAAC MCLEROY, defendant in error.

When there is an adequate remedy at law, equity will not interfere.

Equity, from Pike county. Decided by Judge CABINESS, October Term, 1857.

Edward J. McLeroy, as guardian of Charles W. McLeroy, (the minor child of James McLeroy and Eliza W. McLeroy, formerly Eliza W. Gilden) filed his bill in equity for an injunction, under the following circumstances: The said Eliza McLeroy, then Eliza Gilden, was, in 1850, possessed of two negroes, which she had received from the estate of her mother, Mary Gilden, under and by virtue of the will of her said mother, the 4th item of which was as follows: "I give and bequeath to my daughter, Eliza W. Gilden, and to the heirs of her body, a negro boy by the name of Demps, about ten years old, also my boy Hanson, eight years old." In 1850 the said Eliza Gilden intermarried with James McLeroy, and in the following year died. The complainant stated these facts in his bill, and alleged that he was informed and believed that in consideration of said marriage, it was agreed by the said James McLeroy, that the said two negroes should continue and remain the property of said Eliza W. in trust for the children of the marriage. That Charles W., the complainant's ward, was the issue of the marriage. That

McLeroy vs. McLeroy.

the said James McLeroy subsequently intermarried with Mary White, and in 1856, died intestate. That the said Eliza Gilden received the said two negroes not as her absolute property, but to her absolute use only, in the event of her having a child or children, and that the fee in said negroes was to vest in said children; and up to the time of the birth of the said Charles W., they were so considered; and afterwards the said James McLeroy and the said Eliza continued to treat them as the property of the said Charles W.; and that at the time of the second marriage of the said James McLeroy, it was well understood, by the said Mary White, to whom they belonged, and that during the lifetime of the said James, she so treated and spoke of them. That Hanson, one of the said negroes, had died. That letters of administration on the. estate of the said James McLeroy had been granted to Isaac McLeroy, and that the said Isaac had taken possession of all the property of the deceased, and at the same time took possession of the said negro Demps, and did, in December, 1856, offer the said negro boy for sale under an order from the Court of Ordinary, as the property of the said James McLeroy. That complainant interposed a claim to the said negro, but not being ready for trial at the Inferior Court, confessed judgment and entered an appeal to the Superior Court, and said appeal was then pending. That under the strict rules of evidence in a Court of common law, complainant would not be able to prove all the aforesaid facts and circumstances, and had not an adequate remedy at common law. Complainant therefore prayed that the said Isaac McLeroy might be ordered to deliver up to him, as guardian, the said negro boy, Demps, and account for his hire from the time complainant demanded the same from him, and for an injunction restraining the said Isaac from trying the said claim cause at law.

Complainant applied to the Judge in the Court below for an injunction, which was refused. And complainant excepted.

McLeroy vs. McLeroy.

GREEN, DANIEL, and DISMUKE, for plaintiff in error.

J. Q. A. ALFORD, contra.

By the Court.-BENNING, J. delivering the opinion.

The bill alleges, that it was agreed by and between James McLeroy and Eliza W. Gilden, in contemplation of intermarriage, that she should hold the two negroes for the use of the children of the marriage; that Charles W. McLeroy was the only child of the marriage; and that, Jas. McLeroy, after the marriage and the birth of Charles W., always treated the two negroes as the property of Charles W.

Whatever title to the negro in dispute, this gave to Charles W., may be as well asserted at law, on the trial of the claim, as it can be, in equity. This is plain.

There is no need, then, for the bill, and, therefore, no equity in the bill.

I remark, however, that whether the agreement gave any title to the negro to Charles W. or not, depends, I suppose, upon whether the agreement was in writing or not; or, if it was not in writing, upon whether it was executed, carried out, or not, by the father, James McLeroy, in his lifetime. Whether his conduct in respect to the negroes, amounted to an execution, a carrying out, of the agreement, is another question.

Judgment affirmed.

Doane vs. Chittenden & Co.

JOHN A. DOANE, claimant, plaintiff in error, vs. S. B. CHITTENDEN & Co. defendants in error.

[1.] Where two tenements on the same lot, worth each several thousand dollars, are both levied on and sold together to satisfy a tax execution of less than one hundred dollars, the sale is absolutely null and void.

[2] The owner of a city lot mortgages it in 1855; in September, 1856, a tax execution is issued to collect the tax due by the mortgagor, for 1856, and sells, not the equity of redemption, but the whole property, a property worth six or seven thousand dollars, for less than one hundred.

Held, That the lien of the mortgage is not divested by the sale.

Claim, from Fulton. Tried before Judge BULL, at October Term, 1857.

A mortgage fi.fa., bearing date 30th April, 1857, in favor of S. B. Chittenden & Co., against James T. Doane, for nineteen hundred and nine dollars and eighty-four cents, besides interest and costs, was, by the Sheriff of Fulton county, levied upon the property mortgaged. The levy was made 1st May, 1857. The mortgage was executed by James T. Doane to plaintiffs in fi. fa. on the 15th November, 1855, and recorded 24th November of the same year. A claim to this property was interposed by John A. Doane.

Upon the trial of the claim, the plaintiffs in fi. fa. (the mortgagees) offered in evidence the mortgage fi.fa, with the entry of the levy by the Sheriff upon the property described in the mortgage, which was "upon part of lot No. 4, in block No. 10, in the city of Atlanta, being part of land lot No. 77, in the 4th district of originally Henry, now Fulton county, fronting on Whitehall street 50 feet, and on Hunter street. 140 feet 5 inches."

The plaintiff in fi. fa. further proved by the Sheriff, who made the levy, that James T. Doane, the mortgagor, was in possession of the property at the date of the mortgage. Here plaintiff closed.

The claimant then offered in evidence the copy of a tax fi.

Doane vs. Chittenden & Co.

fa. (the loss of the original having been proved) in favor of the City of Atlanta, against James T. Doane, for taxes due by him to said city for the year 1856, dated 1st September, 1856, with the following entries endorsed thereon:

"Levied the within fi. fa. on part of city lot No. 4, block No. 10, lying on Whitehall and Hunter streets, including the house lately occupied by John A. Doane, and the one at present occupied by Andrews & Miller, being part of lot No. 77, originally Henry, now Fulton county. This Oct. 28th, 1856. B. N. WILLIFORD, Marshal."

"December 1st, 1856. The parcel of land, &c., levied on by virtue of this fi. fa. was this day sold by me to John A. Doane for $99 50, which I have applied in full satisfaction of this fi.fa.

"GEORGIA,

B. N. WILLIFORD, Marshal."

I, W. R. Venable, Clerk of the Superior Fulton county. Court of said county, do hereby certify that the within fi. fa., with the entries thereon, is a true copy of the original now of record in my office. Given under my hand and official signature, this 3d December, 1856.

W. R. VENABLE, Clerk."

Claimant then offered and read in evidence a deed from Williford, the Marshal, to him, dated 3d December, 1856, conveying said lot, in pursuance of said sale. This deed was recorded 3d December, 1856, the day of its date.

Claimant then introduced B. N. Williford, who testified, that as Marshal, he levied said tax execution on said lot, 28th Oct., 1856, and sold the same to John A. Doane, for $99 50, he being, at that price, the highest bidder. Said sale was made on the 1st Monday in December, 1856. That as the entire lot consisted only of one-fourth of an acre, and covered with houses, one occupied by defendant as a store below and dwelling above, the other by Andrews & Miller, which were connected by a flight of stairs, and a floor at the head,

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