Montgomery v. McGee , 26 Tenn. 234 ( 1846 )

Reese, J.

delivered the opinion of the court.

This bill charges that complainant had obtained judgment at law against two of the defendants, McGee and Bledsoe, in the Circuit Court of Fentress county, for two hundred and fifty-four dollars, and had caused an execution to issue, which had been levied upon a horse, the sale of which would not produce more than twenty or thirty dollars* That defendant McGee has theretofore purchased certain real estate in said county, from defendant Taylor, and paid him therefor, but that Taylor had not conveyed, but retained the legal estate, and that McGee had sold the same premises to Bledsoe, the defendant, and the bill seeks to subject the equitable estate in the premises to the’satisfaction of the complainant’s judgment.

The defendants demurred to the bill, and the Chancellor sustained the demurrer, probably, upon the ground, that the bill did not set forth that an execution had been returned, nulla Iona. The case of McNairy vs. Eastland, determines, that this is not necessary. But the lien of the judgment upon the equitable real estate, will sustain the jurisdiction of the court, without such return.

Let the decree of the Chancellor be reversed, and the case be remanded to the Chancery Court to be proceeded in, according to the course of that court.