Relfe v. Bibb , 43 Ala. 519 ( 1869 )

B. F. SAFFOLD, J.

The bill filed by the appellants was dismissed for the want of equity. Its allegations present the following case: A. Pope owned several lots of land in the city of Montgomery which were subject to the lien of a judgment, recovered against him by Harris & Hoyt in 1861. On the 9th of March, 1866, he sold two of the lots, numbered 7 and 8, to the appellants. On the 5th of April, 1866, he mortgaged thirteen others to J. D. Bibb. Afterwards he sold one numbered 9, included in the mortgage to Bibb, to Wing. Bibb sold all the lots mortgaged to him except three, one of which, No. 9, he released to Wing, on payment of $175. The lots sold by Bibb were redeemed by Pope, and are now his property. Bibb subsequently bought the judgment of Harris & Hoyt, and is now proceeding to sell, under execution issued on it, the lots 7 and 8, belonging to the appellants. The bill prays for an injunction to restrain the sale of the said lots for the satisfaction of the judgment, and for general relief.

The facts stated are to be taken as true. The appellants are clearly entitled to have the execution directed, first, against the property remaining in the possession of Pope, and if that is not sufficient to satisfy the judgment, then against that conveyed by him in the inverse order of its alienation.—Mobile Marine Dock and Mutual Insurance Co. v. Huder, 83 Ala. 713; Schryver v. Feller, 9 Paige, 173, 176; Clouees v. Dickerson, 5 Cowen Ch. R. 235, 241, 242, 243.

The decree is reversed and the cause remanded.