Bethune vs. Wilkins and Rutherford. lar or special in the case, for which a Court of Law cannot afford adequate redress. [2.] An allegation in the bill, that the tenant will be rendered homeless, for want of means to procure another habitation, will not authorize a Court of Equity to restrain the officer, by injunction, from placing the purchaser at - Sheriff's sale in possession of the premises. The Act of 1823, which authorizes the Sheriff to place the purchaser of real estate in possession, does not justify the officer in dispossessing any other person but the defen dant in execution, his heirs or tenants. In Equity, in Muscogee Superior Court. Decision by Judge ALEXANDER, at Chambers, October, 1849. James N. Bethune, as trustee of Mrs. Parizade Mitchell and her children, filed a bill, alleging that on 1st January, 1846, James S. Norman purchased a certain lot of land in Wynnton, of John Banks, for $1000, and gave his four promissory notes for the same, taking at the same time from Banks, a bond to make titles when the notes were paid; that subsequently, on 1st September, 1847, the complainant, as trustee, purchased of Norman, the bond of Banks, and caused the same to be transferred to himself, as trustee; that he, as trustee, undertook to pay the notes given by Norman for the purchase money-the whole being still unpaid; that, as trustee, he had paid one of the notes and a part of the second, and that Mrs. Mitchell and her husband, Isaac Mitchell, had been in possession ever since. The bill farther alleged, that in November, 1848, one George Hargraves, Jr. obtained judgment against James S. Norman for $250, besides interest, and caused the fi. fa. issued thereon to be levied on this lot of land; that the same was sold by the Sheriff, and purchased by Col. Seaborn Jones for $129, who subsequently transferred his bid to Francis G. Wilkins, to whom the Sheriff made a deed; that Wilkins gave the Sheriff a bond to indemnify him for damage or loss, upon which the Sheriff agreed to give him possession of the land; that the Sheriff had threatened to turn Isaac Mitchell and his family out of possession-to avert which, Mitchell, in writing, acknowledged himself to be the tenant of Wilkins. The bill was to quiet the possession of the cestui que trusts of complainant, and prayed for a perpetual injunction against Wilkins, and for general relief. Bethune vs. Wilkins and Rutherford. The answer of Wilkins admitted, that he had heard of the claim of complainant, before his purchase, but insisted that Isaac Mitchell made the purchase of Norman; that the fi. fa. against Norman, under which the land was sold, was founded on a judgment recovered on one of the notes given for the purchase money. The answer farther admitted, that the land was bid off by Col. Jones, and purchased of him by defendant, and that he took an acknowledgment, in writing, from Isaac Mitchell, that he held as tenant of defendant; but defendant insisted that the acknowledgment was written by the complainant himself, and under an agreement with him, that defendant would acknowledge service of an action of ejectment, to be brought by complainant for the land. On the coming in of the answer, a motion was made to dissolve the injunction, on the ground that the équity in the bill was sworn off. The Court sustained the motion, and complainant excepted. H. HOLT, for plaintiff in error. H. L. BENNING, for defendant. By the Court.-LUMPKIN, J. delivering the opinion. This bill was filed to restrain the Sheriff, by injunction, from placing the purchaser of a certain lot in Columbus, at Sheriff's sale, in possession of the premises, on the ground that the complainant is the owner of the property so purchased; and that being neither defendant in execution, his heir or tenant, the Sheriff is not authorized to eject him from the premises. The defendants having answered the bill, moved the Court below to dissolve the injunction, upon the ground that the equity in the bill had been fully sworn off; which motion was granted, and thereupon the complainant excepted, and now assigns the same for error in this Court. [1.] We feel bound to affirm the order dissolving the injunction, not, however, because the equity in the bill was sworn off, but because the injunction ought never to have been granted. Anthony vs. Brooks, 5 Ga. R. 576. The injury threatened is, at most, a mere trespass, susceptible of ample pecuniary compensa Snelling vs. Parker and another. tion, and for which the party aggrieved may, and no doubt will, obtain adequate damages in a Court of Law. [2.] And to that redress the complainant is remitted, should the Sheriff, without authority of law, forcibly dispossess him. There is nothing special in this case, for which a Court of Law could not administer a satisfactory remedy. It is true that the bill alleges, that the tenants the cestui que trust of the complainantwould become homeless and houseless, for want of means to provide another habitation. This, however, would only aggravate the trespass and enhance the measure of damage. Let the judgment below be affirmed. No. 22. JOHN J. SNELLING, plaintiff in error, vs. SIMEON PARKER and another, defendants. [1.] The Act of 1822, which declares that, "In cases where an appeal is entered from the first verdict, the property of the party against whom the verdict is rendered, shall not be bound, except from the signing of the judgment on the appeal, except so far as to prevent the alienation, by the party,.. of his, her or their property, between the signing of the first judgment and the signing of the judgment on the appeal," is intended only to prevent the alienation of property by the defendant, pending the appeal, to the injury of the plaintiff: Held, that under this Act, two judgments being obtained in favor of two plaintiffs at the same term, against the same de fendant, upon one of which only an appeal is entered, and pending that appeal, the defendant aliens his property, which is finally brought to sale, after a judgment on the appeal, the judgment on the appeal is not entitled to share in the distribution of the fund, with the judgment at Common Law, upon which no appeal was entered. Rule against Sheriff, Talbot Superior Court. Decided by Judge ALEXANDER, September Adjourned Term, 1849. The only question in this case, arose upon the following agreed statement of facts: VOL. VIII. 16. Snelling vs. Parker and another. At the December Term of the Inferior Court of Talbot Coun ty, 1842, John S. Buckner and John J. Snelling, each obtained' a judgment against Charles Evans. An appeal was entered from the judgment in favor of Snelling-which appeal was determined at March Term, 1846, and a judgment entered in favor of Snelling. It was farther agreed, that the money in the hands of the Sheriff, was raised out of property aliened and sold by Evans, after the first judgment, and before the judgment on the appeal. Buckner and Snelling both claimed the amount in the Sheriff's hands. The Court ordered the whole amount to be paid to Buckner, and Snelling excepted. L. B. SMITH, for plaintiff in error, cited Harden vs. Stovall, Simmons & Co. 1 Kelly, 95. WORRELL, for defendant, The Court not being unanimous in their decision, pronounced their opinions seriatim. NISBET, J. delivering the opinion of the Court. [1] Two judgments were obtained by two different plaintiffs against the same defendant, at Common Law; upon one of them an appeal was entered, upon the other no appeal was entered. Intervening the date of the judgment at Common Law, and the judgment rendered on the appeal, in the appeal case, the defendant aliened his property. After the judgment on the appeal, his property was levied upon and sold. The money arising from the sale, being in the hands of the Court for distribution, the plaintiff in the judgment on the appeal claimed to be let in upon equal footing with the judgment at Common Law, from which there had been no appeal that judgment contesting, denied the right of the appeal judgment to be so let in-claiming the whole fùnd upon its own prior and better lien. The Court below ordered the whole fund to be paid to the Common Law judgment. The Snelling vs. Parker and another. plaintiff in the appeal judgment excepted, and that order is for the review of this Court. The judgment of this Court is, that the Circuit Court administered the law correctly. By Statute, all judgments take licn from the term at which they are rendered. This is the general rule. By this rule, how stand these two judgments, when both were rendered at Common Law? Both stood upon the same platform-both acquired a lien-and the liens were equal;" and had no appeal been entered upon either, they would have equally bound all the property of the defendant, and would have been entitled to share in the distribution of this fund. But one is appealed from and the other is not. How, then, stands the case? Why, the judgment upon which there is no appeal, stands unaffected by the appeal entered on the other. Its lien is perfect still. It binds all the property of the defendant, whether it shall be aliened or not. It is bound to share with no judgment at the time of its date, not rendered. But the effect of the appeal on the other judgment is, to pre vent the lien which it held before the appeal. The appeal opens the whole case-it renews the litigation before the appellate tribunal. When it reaches that tribunal, the case is before it in its totality. When an appeal is entered, there is no judgment. Whether there ever will be a judgment or not in the case for the plaintiff, depends upon the event of the trial on the appeal. If the trial results in favor of the plaintiff, then, and not till then, is there any lien created for him, except in one single instance and for one single purpose. These exceptions are created by the Act of 1822. That Act not only creates the exceptions which I will state, but it declares all the principles in relation to these two judgments, which I have before stated. For example, it declares, "that all the property of the party against whom a verdict shall be entered, and a judgment signed thereon, in conformity to the provisions of the 26th section of the Judiciary Act of 1799, shall be bound from the signing of the first judgment, in cases where no appeal is entered." That is to say, if an appeal is entered, the first judgment does not bind the property of the defendant, from its signing. Now, this judgment at Common Law, not being appealed from, by this very Act, acquired an unrestricted, unlimited, absolute lien upon all this property, and, of course, the money raised from the sale of it, at the time it was first signed. Then |