
    Jackson v. Elliott.
    
      Bill in Equity for an Injunction Against a Judgment at Law.
    
    1. Injunction against judgment on notes for purchase-money of land. Complainant, being in possession of land, bought from respondent, under a bond for title, and, having paid part of the price, discovered that defendant was only a cotenant with four others, and refused to pay the next deferred payment note that came due. Defendant recovered judgment against him, and complainant filed a bill to enjoin its collection, alleging the above facts, and that, if four-fifths of the title should be lost to him, defendant was financially unable to respond in damages. Defendant’s ability to make title was still in question, his possession not having been necessarily adverse to his cotenants. He produced evidence of his title to two of the four-fifths, but asserted that the deeds to the other two had been lost. On these facts the bill made a case for equitable relief, and a decree dissolving the temporary injunction and requiring a refunding bond pursuant to Code § 8531, was proper.
    Appeal from tbe Chancery Court of Shelby.
    Heard before the Hon. S. K. MoSpadden.
    The bill in this case was filed by John S. Jackson, against Jefferson B. Elliott, and prayed to have the defendant enjoined from the collection of a judgment against the complainant. This appeal is taken by the complainant from the decree dissolving the temporary injunction.
    
      In addition to tbe facts stated in tbe opinion, tbe bill avers that John J. Jackson, the complainant, purchased from Jefferson B. Elliott, tbe defendant, certain tracts of land, making a cash payment for tbe same, and giving bis notes for tbe deferred payments; that this purchase was made upon tbe faith of tbe representations of Jefferson B. Elliott that be owned tbe lands purchased, and that tbe purchaser, tbe complainant in this case, would get a tona fide fee-simple title thereto; and that, upon the cash payment and the execution of the notes for tbe deferred payment, the said Jefferson B. Elliott gave tbe plaintiff bis bond for title, in which be agreed, on payment ol tbe purchase-money by tbe complainant, to convey, to him by warranty deed a fee-simple title to tbe property so purchased. The bill then avers that at tbe time of making tbe sale tbe said Jefferson B. Elliott, was not tbe owner in fee-simple of tbe lands so purchased by tbe complainant, but, on tbe contrary, was only tbe cotenant of said lands, owning an undivided one-fifth interest therein; that, after be bad paid some of tbe purchase-money notes at maturity, tbe complainant discovered tbe falsity of tbe representations of said Elliott, and, upon bis being unable to comply with bis contract, did not pay tbe next note as it fell due, whereupon tbe said Elliott brought an action at law on the complainant’s promissory note; but, on tbe said Elliott’s agreeing with the said complainant not to enforce tbe collection of tbe judgment recovered in said cause if be, tñe said John S. Jackson, would not interpose a defense thereto, at tbe same time promising tbe said Jackson that be would secure the fee-simple title to tbe property purchased for him, by conveyances from tbe other parties in interest, tbe said Jackson did not make any defense to said action, whereupon tbe said Elliott recovered judgment therein, and bad an execution issued on said judgment, which was to be levied upon tbe personal property of tbe said Jackson; whereupon tbe complainant filed tbe present appeal to enjoin tbe levying of this execution, or tbe sale of the property thereunder, or the collection of any of tbe other notes as they fell due, and prayed that on tbe final bearing tbe chancellor would decree a rescission of said contract, and order such relief as,'the premises considered, tbe complainant was entitled to. Tbe defendant, in bis answer, denied tbe material allegations of tbe bill, and moved tbe court to dissolve the injunction, on tbe ground that there was no equity in tbe bill, and on tbe denials of tbe answer. On tbe submission of tbe cause, tbe chancellor sustained their motion to dissolve tbe injunction, and decreed “that, before defendant proceeds to further execute and enforce his said judgment, he must execute a refunding bond with good security, approved by the register, in double the amount of the sum enjoined, payable and conditioned as required by section 3531 of the Code of 1886.” It is from this decree that the present appeal is prosecuted, and the same is assigned as error.
    Longshore & Beavers and Peters, Wilson & Lyman, for appellant.
    W. B. Browne, for appellee.
   STONE, C. J.

The bill in this case is drawn with more than averagé care, and sets forth that Elliott, the vendor, did not own the entire title to the lands he contracted to sell and convey to Jackson! According to the averments of the bill, he was only a tenant in common with four others, his brothers, under the will of their father. The bill further avers that Elliott owned but little property—very little, if any—in excess of his exemptions, and that if four-fifths of the title should be lost to Jackson by virtue of said ownership of the co-tenants, Elliott was financially unable to respond in damages. Jackson was in possession under his purchase, had been sued to judgment on his purchase-money note, and the present bill was filed to enjoin its collection, because of the alleged defect in Elliott’s title. The bill makes a case for equitable relief. -Kelly v. Allen, 34 Ala. 663; Blanks v. Walker, 54 Ala. 117; Sivoly v. Scott, 56 Ala. 555; Lindsay v. Veasy, 62 Ala. 421; Wilkinson v. Searcy, 74 Ala. 243.

The answer, if true, shows that long before the sale to Jackson, Jefferson B. Elliott had become the owner of the entire title to the property he sold to him, Jackson. He, Elliott, furnishes the evidence of his ownership of two of the four-fifths, but as to the other two, he avers the conveyances have been lost. This will possibly cast on him the duty of making, or attempting to make other proof as to those other two-fifths, the result of which we can not with certainty anticipate. We hold that the chancellor rightly required of the defendant, Elliott, a refunding bond. record in such form that we feel it our duty to consider it. McArthur v. Carrie, 32 Ala. 75; Marston v. Rowe, 39 Ala. 722; Worley v. High, 40 Ala. 171; White v. Hutchings, Ib. 253; McCartney v. Bone, Ib. 533; Harrison v. Heflin, 54 Ala. 552; Goodwyn v. Baldwin, 59 Ala. 127; Barksdale v. Garrett, 64 Ala. 277; Goodman v. Winter, Ib. 410; Baker v. Prewitt, Ib. 551; Nettles v. Nettles, 67 Ala. 599; Garrett v. Garrett, 69 Ala. 429; Matthews v. McDade, 72 Ala. 377; Kelly v. Hancock, 75 Ala. 229; Long v. Parmer, 81 Ala. 384; Solomon v. Solomon, 81 Ala. 505; Bozeman v. Bozeman, 82 Ala. 389; Davis v. M. & C. R. R. Co. 87 Ala. 633; Knabe v. Burden, 88 Ala. 486; Duncan v. Williams, 89 Ala. 341; Semple v. Glenn, 91 Ala. 245.

The decretal order of the chancellor is affirmed. Let the costs of appeal be paid by the appellant.

Affirmed.  