Taylor's Appeal

Mr. Justice Sterrett

delivered the opinion of the court, February 9th 1880.

It cannot be doubted that under certain circumstances the power of a court of equity to restrain an execution-creditor from proceeding to sell may be properly invoked; but, as was said in Winch’s Appeal, 11 P. F. Smith 424, “ it is only where the creditor is clearly and undeniably proceeding, against right and justice, to abuse the process of the law to the injury of another, that equity intervenes to stay his hand.”

Tested by this principle, the appellee was not entitled to the special injunction. The appellant, in his affidavit or answer as it is termed, positively denies that he knew anything about plaintiff’s title, as set forth in the bill; and avers, that he believed then and believes now, that Corbin had an interest in the property levied on at the time the judgment was obtained. He also denies that he is proceeding to sell “with the express intention and purpose,” charged in the ninth paragraph of the bill. The bill itself discloses the fact that, at the date of the judgment against Corbin, he claimed an interest in the lot to the extent of a part of the consideration therefor, which ho alleged had never been fully paid. If he was correct in this, the appellant had a right tó subject that interest, whatever it might be, to the payment of his judgment, by levying on and selling the same as the property of Corbin. It is alleged, however, in the bill, that the price of the lot had been fully earned before the judgment, was obtained, but this is not admitted. On the contrary, it is impliedly denied in appellant’s affidavit.

As a general rule, it has been the practice in this state, for a judgment creditor to seize and sell in satisfaction of his debt any real estate in which his debtor has or is believed to have an interest.. Whenever such interest is alleged, the creditor is permitted to proceed with his execution; and if there be any question in regard to title, it may be raised and determined afterwards in an action of ejectment. The reason why the creditors’ execution will not be enjoined in such cases is, that to do so, would in effect withdraw, from the consideration of a jury facts which properly should be decided by them. In cases of disputed title to personal property, taken in execution, our interpleader act provides a special mode of proceeding, in which conflicting claims of ownership may be determined, if the sheriff or other officer charged with the execution of the writ sees fit to avail himself of the protection afforded by the act.

In Hunter’s Appeal, 4 Wright 194, an injunction restraining the sale of a wife’s real estate on an execution against her husband, was sustained; but the decision was put on the ground, that the separate property of a married woman is expressly exempted by statute, from levy and sale for the debts of her husband, coupled with the fact, admitted by the pleadings, that the land levied on belonged exclusively to the wife. This fact was a controlling element in the case. In Winch’s Appeal, supra, where the title of the wife was disputed, the court refused to restrain the creditor from proceeding with his execution against the alleged interest of the husband and thus preparing the way to test the title, if it became necessary. A somewhat similar principle was recognised in Reeser v. Johnson, 26 P. F. Smith 313.

It may happen that the bona fide owner of real estate is subjected to the inconvenience and annoyance of having his property levied on for the debt of one who, perhaps, is not and never has been interested therein ; and thus his title may, for the time being, be clouded and rendered unmarketable; but such results cannot be wholly avoided. Relief must be sought, when they do occur in speeding the final determination of the questions in dispute, by such means as are provided by law for that purpose.

The decree granting the special injunction is reversed and set aside, and it is ordered, that the costs of this appeal be paid by the appellee.