
    Brunner et al. v. Royal.
    The evidence being conflicting, there was no abuse of discretion in granting a temporary injunction.
    August 1, 1892.
    Injunction. Sheriff’s sale. Before Judge Miller. Bibb county. At chambers, May 2, 1892.
   Judgment affirmed.

An injunction was granted on the petition of W. W. Royal, restraining the defendant from interfering with Royal’s possession of a house and lot where he resides, which was sold by the sheriff on April 5,1892, and purchased by the defendant Brunner, upon condition that Royal within ‘five days should pay into court $185 and interest from date of sale, to be held subject to the further order of the court. The sale was under an execution issued from a justice’s court in the suit of Boifeuillet & McCaw v. W. W. Royal, surviving partner of W. W. Royal & Co., dated May 4, 1889, for $65.40 principal, $6.55 interest to April 27,1889, and future interest from that date, with costs. It contained an entry by Burroughs, constable, that after due search he was unable “to find any personal property of defendant which . to pay this execution,” dated March 7, 1892; also an entry of the same date, signed ‘ by the same constable, of levy on the property of W. W. Royal, and reciting, “ Written notice given said W. W. Royal as required by law.” Then followed the sheriff’s entry of sale to Brunner for $185, and of application of proceeds, dated April 7, 1892. The sheriff’s deed to Brunner is dated April 5. The petition of Royal attacks the levy and sale as illegal and void, because he had no notice or knowledge of levy until after the sale. This allegation as to want of notice is supported by the testimony in his behalf, which is directly to the contrary of that of the constable, who swears that he told Royal he would have to levy on the land in question, “then wrote out a memorandum of the levy on the lot and read it to him,” and then returned to town and made the entries on the execution. Brunner swears that Royal told him a few days after the sale that' he (Royal) had been notified of the levy at the time it was made, by the constable who came out to see him to make the levy. This also is contradicted by Royal’s affidavit. The petition alleges also that the sale was procured for the purpose of obtaining the property for a small price; apd this is denied in the answer. It further appears that the Bibb Loan & Building Association held a deed from Boyal to the property to secure a loan, and that Boyal held its bond to reconvey the title on payment of the loan, the amount due on April 6th being $463. The loan was $800; it was made on September 22, 1886, and was repayable in monthly instalments of $8. At the sheriff’s sale the attorneys for the association gave notice of its claim. After the sale Brunner paid to it the $463, receipt of which was acknowledged on the deed held by it, and the same was cancelled April 16, 1892. Brunner sets up that while his bid was made with knowledge that the property was subject first to the loan, he acted innocently and in good faith, believing the sale to be legal and valid, and beiug informed that a legal levy had been made with due and legal notice to Boyal; and that it was his right, as the purchaser of the plaintiff’s equity of redemption, to pay the loan and receive can-celled the deed which it held. There is testimony of Boyal and his son that about April 15th, the son inquired of Bruuner what amount would be required to settle with him, and he replied that it would be about $200, add requested the son to bring his father, and they would talk about it; that they went together to see Brunner, and Boyal told Brunner that he did not want Brunner to lose anything by it, and that he was willing to pay him what he had paid out, and wanted to know what could be done; that Brunner replied he did not want to deprive him of his home, that he would go down town and see about it, that he had to meet the directors (of whom he was one) of the Merchants & Mechanics Building & Loan Association, and if Boyal would come back the next day at ten o’clock, he would let him know; that on the next day at ten o’clock Boyal returned and waited two hours for Brunner, and when Brunner returned he said he could not do anything for Royal, that he had seen the directors and washed his hands of it, that the loan association claimed that he had bought it for them and that they thought they had made a good trade as they owned the land behind it, an,d also owned it, and they had decided to hold it. Another ground of attack on the levy and sale is, that the levy was excessive. The testimony, for Royal tends to show that the property is worth $1,500 and could have been divided for the purpose of levy and sale, while the testimony for Brunner is to the effect that it was incapable of division, that it would not bring over $800 at public sale and possibly $1,000 at private sale, and that with the encumbrance-above mentioned, one witness would not have made an offer or bid on it. 'It is also alleged that the execution did not bind the property of Royal individually.

The defendants excepted to the grant of the injunction, and especially to the grant of it without requiring Royal to pay or tender to Brunner the amount paid by Brunner to the Bibb Loan & Building Association in satisfaction of the lien held by it.

Ryals & Stone, for plaintiff’ in error*

Dessau & Bartlett, contra.  