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Strickland, adm'r, vs. Dent.

of the intestate, with certain exceptions set out in the bill; that many creditors of the intestate had given to complainant statements of debts and claims; and that some creditors of the deceased, to-wit: Smith & Wood, Rollins & Hall, T. M. Jones, and McMillan & Harvey, had obtained judgments in attachment against the property of the intestate, in the Justices Court of the 788th district, in said county of Heard, after the death of the deceased, and before any administration was taken out on his estate. That certain other creditors had brought their actions against the intestate's estate, which were then pending; that in consequence of the great number of the debts, and the inability of complainant to determine, (without discovery from the creditors,) how to rank such debts, complainant could not safely pay the debts without the direction of a Court of Equity. That the said desendant Dent insisted that the two notes given him by intestate, in payment of the house and lots, should be paid equally with the other notes due from the estate. Complainant, therefore, prayed that the creditors of the intestate might be decreed to make a discovery of their claims; that the contract between the intestate and the defendant Dent might be rescinded, and Dent ordered to deliver up to complainant the notes for the purchase money for the said house and lots, and that the complainant might be ordered to deliver up the bond for titles to the same to the said defendant, or that the said house and lots might be decreed to be sold, and the proceeds of the sale of the same paid out to the creditors of the deeeased, according to equity and justice, and the decree of the Court; that complainant might, by the decree of the Court, be directed and advised how to pay out the assets of the estate; and that a writ of injunction might issue, restraining creditors who have commenced their suits against complainant, as administrator, from further prosecution of the same, and those creditors who had not commenced suits on their claims, from doing the same, till the final hearing of the cause. There is a prayer for general relief.

Strickland, adm'r, vs. Dent.

To all of this bill the defendant, Joseph E. Dent, filed a demurrer, except to so much as appertained to marshaling assets, and to a sale of the house and lots by said defendant to complainant's intestate, and the relief prayed therein on the ground that there was no equity in complainant's bill to authorize the particular relief prayed for against said defendant, or any other relief except marshaling assets.

After argument, the Court sustained the deinurrer, and dismissed for want of equity so niuch of complainant's bill as related to the restraint of Joseph E. Dent froin proceeding to judgment on said notes,

Counsel for complainant excepted to this decision.

Oliver, for plaintiff in error.

BUCHANAN & W., contra.

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

[1.] There can be no question, that according to the facts alleged in this bill, there is not the slightest ground for the rescission of the contract of the sale of the house and lots by the defendant, Dent, to the complainant's intestate, at the instance of the complainant. Nor is there any equity in the prayer asking a decree of the sale of the property, and the application of the proceeds of the sale to the payment of the debts of the intestate, and to allow Dent to come in pari passu only, with the other creditors of the deceased. The title cannot pass from Dent until the purchase money is paid, exeept under such decree as a Court of Chancery ought to make in the premises.

[2.] But there are allegations in the bill which entitle the complainant to an injunction against the prosecution of the suits of Dent on the notes. The bill alleges that Dent insists

Strickland, adm'r, vs. Dent.

that the said notes due to him shall be paid equally with other notes due from the estate, and he be allowed to hold the title to the said house and lots. There is a prayer in this bill that the Court would decree a sale of the house and lots, and that the proceeds be paid out to the creditors of the deceased, according to equity and justice, and the decree of the Court, as well as a prayer for general relief. It is competent for the Court, under the allegations and prayers of this bill, to decree a sale of the house and lots; that the purchaser shall pay the purchase money to the said Dent, to an amount sufficient, if the property should sell for so much, to pay the principal and interest of his debt, and that Dent shall thereupon execute a title to the purchaser; and that the complainant be decreed to deliver up, thereupon, to Dent, his bond to make titles; and further, that if the house and lots should not sell for enough to pay the said notes, that Dent shall receive the money for which they were sold, and execute a title to the purchaser, and come in pari pussu with other creditors having demands of the same dignity, for whatever bal. ance may remain due on the said notes, after crediting the proceeds of the sale of the house and lots. The defendant, Deni, has no right to carry his debts into judgment and come in and claim against the other creditors, a ratable proportion of the assets, according to the face of his notes. The proceeds of the sale of the land he is entitled to, upon his notes, toan amount sufficient to pay them, to the exclusion of other creditors; but he has no right, and a Court of Equity will not allow him, to come in with his notes for the entire amount of one thousand dollars against the general assets, and then claim the house and lots, on an application to recover it on the ground that he has not been paid. The ertate is alleged to be insolvent. But for that, he might recover the whole amount of his notes from the general assets, and then execute a deed, under the statute, to the heirs-atlaw of the intestate, in discharge of his bond.

The judgment of the Court below must be reversed. There

Pledger and Pledger vs. McCauley.

can be but little difficulty in administering the estate, after the sale made, and the appropriation of the money according to the principles herein stated.

Judgment reversed.

ALLEN PLEDGER and THOMAS PLEDGER, plaintiffs in error, vs.

JAMES MCAULEY, defendant in error.

Motion to dissolve an injunction on the coming in of the answer, ought to be refused,

unless all the equity set up in the bill is denied by the answer.

In Equity, injunction from Catoosa county. Decided by Judge TRIPPE, October Term, 1857.

The facts of this case are sufficiently stated in the opinion of the Court.

Akin, for plaintiff in error.

HOOPER ; and WALKER, contra.

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

answers,

The error assigned in this case is on the refusal of the Court to dissolve the injunction on the coming in of the

The defendant, Thomas Pledger, had taken the assignment of twenty-five fi. fas. issued from a Justices' Court in favor of Hickman, Westcott & Co., against the complainant and Allen Pledger, the other defendant. He had ordered some of them to be levied on the property of the complainant, and others he had directed to be returned, and ca. sas. to be issued in their stead, and had ordered the complainant to be arrested thereon. The complainant then filed

Pledger and Pledger vs. McCauley.

this bill, enjoining the said executions against the property and the body of the complainant from proceeding, charging them to have been paid off with the money of the defendant, Allen Pledger, and fraudulently assigned to Thomas, for the purpose of harrassing the complainant. Among other things, the bill alleges a partnership to have existed between complainant and the defendant, Allen Pledger, in a mercantile concern, and in certain land and mills; that he sold to the said Allen his interest in both, for a consideration stated in the bill, and in this contract of sale the defendant, Pledger, undertook and agreed to pay off all partnership debts; that the debt on which the said assigned fi. fas. were issued, was a debt of the partnership, which the said Allen Pledger was bound to pay; that the said fi. fas. were paid by Allen Pledger, or by his father, Thomas Pledger, with Allen Pledger's money; and so far as the Pledgers were concerned, they were transferred fraudulently, to harrass complainant.

The bill alleges, further, the sale by Allen Pledger of half of the land and mills to his father, Thomas Pledger, for which he took his note; that the defendant, Thomas Pledger, knew at the time of the purchase by him, of the contract by which the said Allen was to pay all the debts of the partnership. There are many allegations of facts and circumstances in the bill, on which charges of fraud are made, which it is unnecessary to set forth here.

The answers of the defendants deny that the partnership extended to the lanıl and mills; that the defendant, Allen Pledger, was to pay the debts of the mercantile concern, to which alone the partnership extended, except from the assets transferred; and states that the individual liability of complainant remained equally with that of defendant, Allen Pledger, for any balance unpaid by partnership effects; denies that he was to pay the debts or anything to complainant, except conditionally, and refers to the note given by him to complainant, on which defendant was sued but never served, and in which suit he alleges a fraudulent confession

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