
    JAMES C. KEITH v. G. W. LEATH ET AL.
    Knoxville,
    June Special Term, 1875.
    1. LEVY. Equitable title not subject to, even for purchase price.
    The holder of land under a title bond has only an equitable title, which is not subject to levy at law, even under an execution issued from a judgment for the purchase price, and a sale under such levy, and the sheriff’s deed to the land, is a nullity. [See notes 11-15, 31, 26-30 under see. 4765 of the Code.]
    2. SAME. Same. Equitable title not pleaded as defense to ejectment at law, when.
    The owner of the legal title to one undivided half of a tract of land, and of the equitable title to the other half, at the time of the levy and sale under execution at law, is not bound in a suit in ejectment brought by the purchaser at execution sale, who claims under a sheriff’s deed to the whole tract, to plead the fact that he had only an equitable title to one-half of the land in controversy when the levy and sale were made. Such a plea would be an anomaly in an action involving only the legal title, and the defendant’s failure to make such defense cannot prejudice his rights.
    3. INJUNCTION. Issued on oath in forma pauperis in accordance with fiat, when.
    An injunction may properly issue upon am. oath in forma pauperis when the fiat is in these words: “Let a writ of injunction issue as prayed for in the foregoing bill, on complainant entering into bond and security as required by law, or otherwise complying with the law,” and will be reinstated by the supreme court, when dissolved by the lower court because so issued.
    Statement of the case.
    James C. Keith filed his hill in the chancery court at Clinton, alleging (among other things), that prior to 1865, he and Ms brother, W. J. Keith, were owners as tenants in common, of a tract of 200 acres of land in Anderson county; that he (complainant, James 0.), in October, 1865, purchased the undivided interest of said ~W. J., in said land, paying part cash and executing note for $281, the residue of the purchase price; that complainant received a title bond from said W. J.; that in 1869, complainant having failed to pay said residue of purchase money, said W. J. Keith sued and obtained judgment therefor before a justice of the peace, upon which judgment execution was issued, and levied “on all the right, title and interest that James C. Keith has in a tract of land,” etc.; that upon the return of the papers to 'the circuit court the said tract of land, or complainant’s interest therein, was condemned, and was upon venditioni exponas' on the — day of —:—, sold and bid off by said W. J. Keith, wlm afterwards transferred his bid to Gr. W. Leath, who took a sheriff’s deed to the whole of said land, and after the expiration of the time for redemption, instituted a suit in ejectment, which resulted in a verdict and judgment in favor of said Leath, and a writ of possession was awarded to put him in possession of the whole tract.
    The bill gives no reason why the complainant 'did not set up in his defense at law that he was legal owner óf only one-half of the land, except that such defense was embarrassed “by reason of the deed which Leath had obtained as aforesaid. It is alleged that by virtue of the proceedings aforesaid, said W. J. Keith, in the first instance, and after him the said Leath, by his purchase and suit in ejectment, obtained only the legal title of complainant in said land, and that his equitable interest had not been touched or affected.
    An injunction was prayed to restrain the said Leath from executing the writ of possession awarded as aforesaid. The oath in forma pauperis was taken by the complainant, and Hon. E. T. Hall, Judge, etc., granted a fiat in the following words:
    “Let a writ of injunction issue as prayed for in the foregoing bill, on complainant entering into bond and security as required by law, or otherwise complying with the law.” The injunction was thereupon issued upon the oath aforesaid.
    The defendant moved in the court below to dissolve the injunction because no bond was given therefor, and because the same issued without authority; and this motion was sustained by the chancellor.
    
      Defendant also demurred, the substance of which was: “That complainant could have set up in defense to the action at law that he was possessed of only the legal title to one undivided half interest in the land, and gives no sufficient excuse for not doing so, and that such defense was plain and unembarrassed in said ejectment suit, and if pleaded would have prevented a recovery for said equitable interest.”
    This demurrer was sustained and complainant’s bill dismissed, who therefore appealed in forma pauperis.
   Skeed, J.,

delivered the opinion of the court.

The chancellor erred in sustaining the demurrer to the bill. The equitable title of complainant in one-half of the land in controversy was not a leviable interest at law, and was not involved in the action of ejectment. The sheriff’s deed, so far as it conveys the whole' estate, was a nullity, and the complainant could not be prejudiced by creating it as such. It would have been an anomaly in pleading to set up a mere equitable title as a defense to an action of ejectment involving only the legal title.

The injunction was properly granted on the oath in forma pauperis, and the same was improperly dissolved. The complainant will be entitled to retain his equitable interest in the land if, upon the hearing, he makes out his case.' Let the decree be reversed, the injunction reinstated, and the case remanded for answer and further proceedings.  