
    Ransom H. Byrne et al. vs. Nathaniel Anderson and others, Trustees for the Farmers and Merchants Bank of Memphis.
    Where an execution is levied on property, subject to an older deed of trust, in favor of other parties, it seems doubtful whether the court of chancery has jurisdiction to interfere in behalf of the beneficiary under the deed of trust, by injunction against the sale under the execution.
    Yet where such injunction is granted in the court below, and the question of jurisdiction not raised by demurrer in that court, the high court, of errors and appeals will not throw any obstacle in the way of the relief sought.
    
      A. and others filed their bill, alleging that they held a deed of trust on certain slaves of P., to secure the payment of a debt due to them ; and that B. having a junior judgment against P., had levied an execution on the slaves ; B. in his answer, set up that P, had made the complainants various payments, and but little was due on the deed of trust; the court below made the injunction perpetual, and ordered the slaves to be delivered to the trustees : Held by this court, that all the matters in controversy should be adjusted in this suit, and that the proper decree would be, for an account to be taken in the court below of what was due complainants ; and a sale under the deed of trust ordered to pay what was thus found due, and the injunction against the execution at law made perpetual as to the property sold to pay the debt due to complainants; and the residue of the property levied on, if any remain, to be subjected to sale under the execution.
    On appeal from the district chancery court at Holly Springs ; Hon. Henry Dickinson, vice-chancellor.
    The facts of this cause will be found sufficiently stated in the opinion of the court.
    
      William F. Stearns, for appellants,
    insisted the bill should be dismissed, because the complainants had an adequate and unembarrassed remedy at law, either by a trial of the right of property or an action of replevin.
    
      John W. Watson, for appellees.
   Mr. Justice Clayton

delivered the opinion of the court.

This case comes up from the district chancery court at Holly Springs.

The Farmers and Merchants Bank of Memphis held a deed of trust upon certain slaves of John N. Phifer, to secure the payment of a debt due to it. Byrne became the owner of a judgment against Phifer, and caused an execution to be levied upon the slaves thus conveyed to the bank. This bill was filed to enjoin the sale under the execution, by the trustees in behalf of the bank. The injunction was made perpetual in the court below, and the slaves directed to be surrendered to the trustees.

The deed of trust is older than the judgment of Byrne, and there is no evidence to show that it is fraudulent; on the contrary, the transaction appears to have been a fair one. It was therefore proper to make the injunction perpetual to some extent. Payments have been made upon the deed of trust, and the answer insists that but little is due upon it. It is certain that the bank has no claim to more of the property, than will satisfy what is due upon the debt secured. It will be better to settle the whole matter of controversy in this suit, and so put an end to the litigation. The amount due should have been ascertained, as it was disputed, before the whole injunction was made perpetual.

The decree will be reversed, and the cause remanded, with directions for an account to be taken of what is due upon the deed of trust to the bank. Upon the coming in of that account, the injunction will be made perpetual, as to so much of the property as will be required to pay the sum so due, to be ascertained by sale under the deed of trust, and the balance of the property levied on, if any remain, will be subject to sale under the execution.

In regard to a mere incumbrancer, it is doubtful if the court of chancery has jurisdiction to interpose in his behalf by injunction. See Bowyer v. Creigh, 3 Rand. 25. But as the point has not been raised by demurrer, we shall not throw any obstacle in the way.

Decree reversed, and cause remanded.  