
    Nesbit et al. v. Donald.
    1. On a petition for an injunction and receiver, on the ground that the defendant, by fraud and undue influence, procured a deed to be made without consideration, and contrary to the intention and desire of the maker as to the disposition of her property, the evidence being conflicting, the discretion of the judge in denying the injunction and receiver will not be interfered with.
    2. The petition alleging that the instrument in question is a deed but is void because procured by fraud and undue influence, and this being the only point made by the pleadings and the evidence, the question whether the instrument is a will instead of a deed and is void for insufficient attestation, is not for decision by the Supreme Court, because it was not made in the court below.
    October 10, 1890.
    Injunction. Deeds. Practice. Before Judge Marshall J. Clarke. Pulton superior court. March term, 1890.
    Reported in the decision.
    J. R. "Whiteside, for plaintifis. ;
    R. J. Jordan, for defendant.
   Simmons, Justice.

Melissa Nesbit, Lula Williams and Henry Williams (the latter by his next friend) filed their petition against S. M. Donald, seeking to set aside a certain deed of gift made by Ami Davis, an aunt of the petitioners, to the defendant and two of the petitioners, Melissa Nesbit and Lula Williams, upon the ground that the defendant procured the deed to he made.by fraud and undue influence; that the signing of it was not the free act of the said Ann Davis ; that there was no consideration whatever for it; and that it was contrary to her intention and desire as to the disposition of her property, and was a cloud upon the title, which they had a right to have removed. The petition also prayed for an injunction and the appointment of a receiver.

The case comes to this court upon exceptions by the plaintiffs to the refusal by the trial judge to grant an injunction and appoint a receiver. We do not think he erred in so doing. The evidence of the plaintiffs and of the defendant was conflicting upon the questions made in the bill; and, as frequently decided by this court, where such conflict exists and the trial judge refuses an injunction or the appointment of a receiver, his discretion will not be interfered with.

In the argument before us, it was insisted by counsel for the plaintiffs in error that the instrument sought to be set aside was not a deed, but was a will; and that it was void as a will because executed in the presence of two witnesses only, instead of three as the code prescribes. This point, however, so far as the record discloses, was not made in' the court below. On 'the contrary, the petition alleges that the instrument is a deed, but is void because procured by fraud and undue influence; and this was the only point made by the pleadings and the evidence before the trial judge. The plaintiffs in error cannot change the issue after the ease comes to this court, and insist that the instrument is void upon a ground not taken in the pleadings in the court below. If the instrument is a will and not a deed, the plaintiffs in error, if they desire to do so, may amend their bill and make the proper allegations ; and the learned judge in the court below will doubtless decide the question according to .law. As the ease now stands we must affirm the judgment.

Judgment affirmed.  