
    SILAS C. CLARK v. FREEMAN WOOD AND WILLIAM PHŒNIX
    1. Notice of trial is a breach, of an injunction staying proceedings in an ■action at law.
    2. On bill by one in possession of land, for the specific performance of an alleged agreement, by the defendant, to purchase the land at sheriff's sale, on ■execution against the complainant, and take a mortgage for the amount advanced by him to pay encumbrances, an injunction to restrain proceedings to recover possession from the complainant will not be retained until the hearing, if the amount due is large in proportion to the value of the land, and the responsibility of the complainant is comparatively limited
    The bill was filed by Silas C. Clark, who had given several mortgages on his lands, and against whom several judgments had been recovered. It alleges that an agreement was made between him and the defendant Freeman Wood, prior to the sheriff’s sale under the executions then levied on the complainant’s lands, that Wood should pay the encumbrances on the land, except the mortgage to Phoenix, the other defendant, which the complainant says he intended to make other arrangements to pay off, and that Wood should become the purchaser at the sheriff's sale, and that the complainant should have the right to redeem the lands by paying to Wood what he should advance in paying encumbrances, and that Wood should give the complainant a writing to that effect, or that he would release the lauds to the complainant, and take a mortgage thereon from the complainant for the money he should advance, as soon as the sheriff’s deed should be made to him, Wood, at the option of the complainant, and that the complainant should remain in the possession of the lands.
    The bill further states that after the property was struck off and conveyed by the sheriff to Wood, he made a deed for the land to Phoenix, who is charged with notice of the agreement, in consideration of the amount which he, Wood, had advanced, and $50; and that Phoenix had commenced an action of ejectment at law to recover possession of the land.
    The bill prays performance of the said agreement, and an injunction restraining further proceedings in the ejectment.
    
      The injunction prayed was allowed.
    Answers were put in, and a motion made to dissolve the injunction.
    J. D. Hager and E. W. Whelpley, for the motion.
    V. Dalrimple, contra.
    
    
      Mr. Dalrimple stated, and it was not denied, that since the service of the injunction the plaintiff in the ejectment had caused a notice of trial in that action to be served, and submitted that the motion should not now be heard.
    The Chancellor said it was a breach of the injunction to give notice of trial. See 2 Sim. and Stu. 186.
    The notice of trial was thereupon countermanded, and Mr. Dalrimple consented that the argument of the motion to dissolve should proceed.
    Cases cited in support of the motion: 4 Wheat. 255; 1 Mason 191; 3 Wend. 208; 2 Story’s Eq., § 1020; Rev. Stat. 658, § 4; Saxton 537; 1 Green’s Ch. 264; 2 Ib. 429; 1 Halst. Ch. 20; 2 Sugdon on Vendors 221, 223, note; 2 Pick. 184.
    Contra, 3 Green’s Ch. 310, was cited.
   The Chancellor.

This is not a bill to redeem on paying the amount due Phoenix. The object of the bill seems to be to compel Phoenix to take a mortgage for what he paid to Wood and the amount of his own mortgage.

The question now presented is, whether the complainant shall be permitted to keep possession pending the controversy in this court, or whether Phoenix shall not be permitted to recover, and hold possession during the controversy.

The amount due Phoenix is large, in proportion to the value of the land, and the responsibility of the complainant appears to be comparatively limited. Under these circumstances, I . think the injunction should be dissolved.

Order accordingly.  