
    James Roach vs. P. Deering et al.
    A judgment at law having been obtained against it., and an execution thereon levied on some real estate, he claimed the benefit of the valuation law; pending the delay thus produced, the property levied on was sold under a mortgage, with power of sale given previous to the judgment by a former owner of the property, and was bought by J. R. for the sum of $ 325, in depreciated money. R. was present at the sale ; the property sold was occupied by R. as a dwelling; he had previously to the sale expended near $ 20,000 in improvements on it, and after the sale continued to occupy the house without disturbance, and without paying rent, to make and pay for improvements, and exercise apparently all the rights of ownership over it; the property would have rented annually for four or five hundred dollars; and J. R. had given a check for, but had never paid the purchase-money; held, on a bill by J. R. to enjoin a sale of his property under the judgment at law against R., after the expiration of the valuation law, that the sale under the mortgage and purchase by J. R. were merely colorable, and left the property still liable for the debts of R.
    On appeal from the superior court of chancery ; Hon. Robert H, Buckner, chancellor.
    James Roach filed his bill to enjoin a sale of certain real estate in the city of Yicksburg, under execution in favor of P. and W. R. Deering, against Thomas E. Robins and others, on the ground that the property levied on belonged to complainant, and not to Robins, or any of the defendants in the execution. He states that the judgment referred to against Robins and others, was obtained on the 20th of May, 1840, for $5603 50, in thé Warren circuit court; execution on it was bonded; the bond forfeited, and on that another execution levied on the land in controversy, as the property of Robins, which was advertised for sale on the 26th of April, 1841. Robins claimed the benefit of the valuation law, and the sale was postponed until the first Monday of October, 1842, when it was readvertised for sale under a venditioni exponas.
    
    
      That on the 9th of October, 1834, William Tick, seized of the premises in controversy, conveyed them to the Mississippi Insurance Company of Yicksburg, by deed of mortgage, with power of sale, to secure one hundred and thirteen shares of stock in the company, subscribed for by Tick; which deed of mortgage was recorded 9th October, 1834. That Tick sold to Pinckard, and Pinckard to Robins. - Tick having failed to pay his stock, the company, by its president, ordered a sale of the premises under the deed of mortgage. They were accordingly sold, after due advertisement, on the 15th February, 1842; at which sale complainant became the bona fide purchaser, as the highest and best bidder, for the sum of $325 ; and a deed was made to him to the property by the president, by which he acquired a complete title, both at law and equity, to the property. He prays for injunction and general relief.
    The answer of the plaintiffs in the execution, admitting the statements in the bill to be true, states their belief that the sale under the mortgage was effected by the fraudulent combination of Robins and Roach, for the purpose of obtaining the injunction. That Robins had placed valuable and permanent improvements on the land, and that the property was worth twenty-five or thirty thousand dollars; and Pinckard, Robins’s vendor, was notoriously insolvent. Other matters were set up in the answer, which it is not necessary to notice.
    Jacob Peale proved that T. E. Robins was then living on the property in controversy. That in the year 1843 he had been employed by Robins to make improvements on the property, had made them, had made out his bill against Robins therefor, who had paid him for them.
    John Cooney proved that in the fall of 1842 and the year 1843, he had, under the employment of Robins, placed permanent improvements on the lot in controversy, and had received payment therefor from Robins.
    William Tick proved that he sold the premises, under the insurance mortgage, at the court-house in Yicksburg. That Robins resided on the property at the time of sale, and was still living on it; had built a house on it before the sale. That Roach bought at the sale, and gave him a check on the Railroad Bank for the money, which he had not yet called for, but considered it as money. He thinks Robins was present at the sale. Roach bid $325 for it in- Planters Bank money. The property was worth more than $5000. On cross-examination he stated that he heard Robins say, in presence of Roach, that he was the tenant of Roach, but did not know whether he was joking or not. Robins knew the sale was'to take place, but never objected to it in any way.
    The chancellor, on this state of pleading and proof, dissolved the injunction, and Roach appealed to this court.
    
      J. F. Foute, for appellant,
    cited 17 Vesey, 112; Pettit v. Shepherd, 5 Paige R. 493, 501; 1 Maddock Ch. 219, 223; Sto. Ecp PI. §§ 847, 852, 854; 2 Daniel’s Ch. Pr. 256-258; Salmon v. Claggett, 1 Bland Ch. R. 163, 165; Ward v. Van Bokkelen, 1 Paige, 100; 4 Litt. R. 433; 5 John. Ch. R. 378; People v. Trimble, 9 John’s. R.-; Hughes v. Bank of Somerset, 5 Litt. R. 47; 2 Bibb’s R. 576; Norton v. Woods, 5 Paige, 249; Canal Company v. Railroad Company, 4 Gill. & John. 1.
    
      George S. Yerger, for appellees,
    insisted that the facts clearly established the proposition that Roach bought for Robins ; the sale was fraudulent and void ; and the property still subject to the execution under the judgment against Robins.
   Mr. Justice Clayton

delivered the opinion of the court.

The controversy in this case, grows out of an alleged fraud in the sale of the property seized under the execution, which is enjoined in this case.

The circumstances relied on to show the fraud, are, that after the levy, and during the stay produced by the valuation law, the house and lot were sold under a mortgage, with power of sale, executed some years previously, by Tick, the original owner of the property. That the house and lot constituted the residence of Robins, the defendant in the execution ; that much trouble had been bestowed on the improvements, at a cost of near $20,000; that he was present at the sale; that the property sold for $325, in Planters Bank money, then under par; that a check had been given by the complainant, who was the purchaser, for the amount bid, which had never, in fact, been paid. That the annual rent of the place was worth $400 or $500. That Robins, since the sale, had remained in the quiet and undisturbed possession of the property, without payment of rent, or any agreement to pay, so far as the proof showed; that he made improvements, and paid for the same, and exercised apparently all the rights of ownership. These reasons, it was insisted, showed the sale and the purchase of complainant to be merely colorable, and left the property still liable for the debts of Robins.

This court is of opinion, that this view of the subject is correct, and that the order of the chancellor, dissolving the injunction should be affirmed.

Decree affirmed.  