
    Jasper N. Smith, administrator, plaintiff in error, vs. William Malcolm, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Injunction — Fraud.—In an application for an injunction to restrain a defendant from selling certain land, on account of fraud on the part of defendant in obtaining the title, the bill also praying relie! and for the cancellation of the deed, and it does not appear that the defendant is insolvent, or threatening or offering to sell the land, and the evidence at the hearing on said application being conflicting as to the fraud, and the Chancellor refuses- the injunction, this Court will not interfere with the decision of the. Judge, the more especially as it does not appear that any irreparable damage can ensue to complainant from said refusal. If, whilst the suit is pending, the defendant were to sell the land, the complainant would only have to make the purchaser a party.
    Injunction. Fraud. Notice. Lis pendens. Before Judge Buchanan. Meriwether county. At Chambers. May 15th, 1873.
    Jasper N. Smith, as administrator de bonis non cum testamento annexo upon the estate of John Malcolm, deceased, filed his bill against William Malcolm, making, substantially, the following case:
    Defendant was the sole surviving executor of the will of deceased, and was in possession, as such, of the entire estate. In the year 1869, the legatees under said will, including complainant, *commenced proceedings against defendant to remove him from the office of executor on account of mismanagement and waste. At the October term, of that year, of the Court of Ordinary of Walton county, judgment was rendered against the defendant, requiring him to give good and sufficient security for the faithful discharge of the trust, from which decision he appealed. Pending the appeal, the defendant made propositions of compromise to complainant to the effect that if the legatees under the will of John Malcolm, deceased, would convey to him certain lands in Meriwether county, he would withdraw his appeal, resign the office of executor, recommend the appointment of complainant as administrator de bonis, etc., and turn over to him the entire estate. Complainant persuaded the other legatees to accede to these terms, and to give to him a power-of-attorney to execute the deed desired by the defendant. Possessed of this instrument, he went to Meriwether county to consummate the settlement. Upon defendant’s turning over the property, etc., of the estate to complainant, he discovered that the grants, plats and deeds to certain valuable lands in Campbell county were missing. Upon demanding them of defendant, he stated that in the hurry of leaving home he had overlooked them. Complainant declined to make the deed to the Meriwether lands until they were produced. The settlement was apparently impossible under these circumstances, when defendant suggested that he would give to complainant an instrument stating that the Campbell county lands were undisposed of and still the property of the estate. The following instrument was accordingly drawn and delivered to complainant:
    'GEORGIA — Meriwether County.
    . “This agreement, between J. N. Smith and William Malcolm, is that the Campbell county lands are to remain untouched by the said J. N. Smith, or whoever is appointed to settle the estate of John Malcolm, deceased, until all the other lands are disposed of, then, if it can be made so as for William Malcolm to get or become owner of said lands by distribution *or otherwise, that is agreeable with the heirs of said estate.
    (Signed) “Wieriam Marcorm,
    “J. N. Smith.”
    Under this instrument and the repeated verbal assurances of said defendant that said Campbell county lands were undisposed of and still belonged to said estate, complainant conveyed the Meriwether county lands to him.
    After the settlement had progressed as far as the appointment of complainant aá administrator de bonis, etc., to-wit: in the year 1871, he advertised said Campbell county lands for sale, when to his astonishment, he discovered that they had been conveyed to John W. Beck, by the defendant, as executor, on August 21st, 1869, for the price of $6,000 00, $2,500 00 of which had been before that time paid to him, of which no return had been made. Complainant waives discovery and prays that the aforesaid deed to the lands in Meriwether county be ordered to be delivered up, and that defendant, in the mean time, be enjoined from disposing of them; that the writ of subpcena may Issue.
    The answer of the defendant denied every material allegation in the complainant’s bill, and alleged that at the interview in Meriwether county, defendant expressly told complainant that he had sold the Campbell county lands, and that he claimed he had the right to retain the notes given for, the purchase money, to reimburse himself for what was due to him frpm said estate; that this issue was compromised by allowing the defendant to retain said notes for the purpose aforesaid, subject to a future settlement after all the other lands of said estate were disposed of; that this was the intention and meaning of the agreement set forth in the bill; that subsequently the complainant proposed that if the defendant would turn over to him the notes for the balance of the purchase money, he would compromise and settle all claims against the defendant on account of said lands, and although he believed the entire amount remaining unpaid was due to him upon a fair settlement, yet, to avoid trouble, vexation and litigation, *he consented, and accordingly turned over to the complainant the aforesaid notes.
    Conflicting affidavits, in support respectively of the bill and answer, were read on the hearing of the motion for injunction.
    The injunction was refused and the complainant excepted.
    Wrigi-it, Dent & Wrigi-it; J. H. S. Brobston, for plaintiff in error.
    George D. Peavy, for the defendant.
    
      
      Injunction — Notice.—In Bell v. Sappington, 111 Ga. 395, 36 S. E. Rep. 780, where the principal case is cited, it is said, “as the petitioners were in possession of the property, and as the filing and diligent prosecution of this suit would be notice to all persons of their rights in the land, an injunction to restrain the defendant from selling or encumbering the land was not absolutely essential to the protection of their interest in the property.” See notes to Cubbedge v. Adams, 42 Ga. 126; Thornton v. Towns, 34 Ga. 125.
    
   TrippE, Judge.

This case presents no reason to make it an exception to the rule of non-interference with the discretion of the Chancellor In refusing an injunction, unless there has been an abuse of that discretion.

No special cause is shown for an injunction — no threat or offer by defendant to sell the land — no insolvency on his part, and the fraud charged, though strongly supported by affidavits, is strongly denied in the answer and in the affidavits offered by defendant. The bill calls for the delivery and cancellation of the deed, is filed in the county where the land lies and defendant lives, and the only danger complainant can apprehend is that the defendant may sell the land, and the consequent necessity of making the purchaser a party. Pie does not show that there is any reason to fear this. The protection that the doctrine of Ms pendens gives him against final loss of title, by its going into an innocent purchaser, and the fact that defendant’s solvency will protect him in any claim for rents, issues and profits, if such a sale were made, render it unnecessary, unless special reasons are shown, for an interference by the harsh writ of injunction.

Judgment affirmed.  