
    Cooper v. Whaley.
    1. The evidence brought up in the bill of exceptions, not having been briefed as the law requires, will not be considered, and the Supreme Court will assume that it was sufficient to authorize all findings by the judge below on questions of fact.
    2. There was no error in holding that an equitable petition praying an injunction against the further proceeding of an execution therein mentioned was not demurrable for want of equity, or in granting a temporary injunction upon the facts alleged in such petition, which were as follows: that petitioner had been the claimant in a claim case in which, under an agreement between the parties thereto, a consent judgment had been rendered by the court finding the property subject, but providing that upon the payment of a specified sum, less than the amount of the execution, by a day named, the judgment should be satisfied in full, otherwise to remain of full force and the execution to proceed; that time was not of the essence of the agreement; that petitioner, by her husband as her agent, tendered to the attorney of record for the plaintiffs in execution, they being non-residents, a portion of the money due under said consent judgment, and offered to pay the balance the next day, all of which was before the day fixed for payment by the judgment, but said attorney refused to receive the money tendered and stated he would not then or the next day receive the whole or any part of the sum duo on the judgment, and referred petitioner’s agent to one McKinney, a non-residentof the county, who in some way controlled and directed the execution, but whether as owner of the execution or as agent of the plaintiffs was unknown to petitioner; that said attorney gave no intimation that the time of making payment would be regarded as important, and had not previously informed petitioner or her agent that McKinney was authorized to receive the money; that, as soon as so informed, said agent made repeated efforts to find and pay him; that he did not attend the court where it was understood the money was tobe paid; and finally, that the money was tendered him, but this was shortly after the day for payment fixed in the judgment, and petitioner now tenders and is ready to pay- the same.
    August 27, 1892.
    Practice. Brief of evidence. Injunction. Judgment. Contract. Before Judge Fish. Webster county. At chambers,
    February 18, 1892.
    This was a petition by Mrs. Whaley for injunction to restrain the sale of land claimed by her, under an execution founded on a judgment in favor of C. & G-. Cooper against her husband. The material allegations of the petition are set forth in the second head-note. An answer was filed by the defendants other than the sheriff, which answer was sworn to by McKinney who claimed to be the owner of the execution; and therein issue was taken on the allegations of the petition. The defendants also filed a demurrer on the grounds, that there was no equity in the petition, and that if the complainant had any legal defence the remedy was adequate and complete at common law. The prayer of the petition was, that the defendants be enjoined from proceeding with the levy and sale, except for the sum agreed to be taken in full settlement of the execution and which the petitioner stood ready to pay at all times, etc. After considering the petition, answer and affidavits, the judge ordered that the injunction be granted as prayed for. To this order the defendants excepted, because the court erred in not sustaining the demurrer, and because the evidence showed that time was of the essence of the contract of settlement, and that there had been no legal tender of the money.
   Judgment affirmed.

Fort & Watson and Hudson & Blalock, for plaintiffs in error.

E. A. Hawkins and B. P. Hollis, contra.  