Dickerson v. Nelson and Another, 4 Ind. 160

Stuart, J. Dickerson filed his bill in chancery to enjoin Nelson from levying an execution on certain real estate. It appears that Nelson had recovered a judgment at law against one Castleman. At the time of the recovery, Castleman was the owner of certain lands held by canal-certificates, on which there was still part due at the land-office, so that certificates of final payment had not issued. After the recovery at law, and before execution issued, and also before final payment, Castleman sold the land to Dickerson, the complainant, and assigned the canal-land certificates accordingly.

Dickerson paid out the land at the proper office, surrendered the certificates assigned to him by Castleman, and received certificates of final' payment. On part of the land Nelson levied his execution issued on the Castleman judgment. The bill was filed and the injunction granted in vacation. At the next term, on Nelson’s motion, the injunction was dissolved, and the bill dismissed for want of equity. Prior to the statute of 1833, land-ofiice certificates were not evidence of legal title. Mosier v. Smith, 3 Blackf. 132. The revision of 1843 is the same, p. 455, s. 8.

A certificate which shows on its face there is part yet due, is not embraced by the statute—is not evidence of legal title. The holder of such a certificate can only demand a deed or patent on certain conditions. In this respect his certificate is like a title-bond, and the title of the owner merely equitable. So this Court has hitherto regarded our canal-land certificates, and others sold on credit. Miller v. Tipton, 6 Blackf. 238. While Castleman held the land, he had no title on which, under the statute, the judgment could be a lien, or the execution be levied.

It is clear, then, that Nelson’s judgment, not being a lien on the land, a levy and sale of Castleman’s equitable interest, after the transfer to Dickerson, would have conveyed no title to the purchaser. Modisett v. Johnson, 2 Blackf. 431.—8 id. 420.—1 Ind. R. 246. It may be said that admitting Nelson’s judgment not to be a lien on the land, still Dickerson’s remedy is at law and not in equity, and therefore the bill was correctly dismissed. We cannot so regard it. No doubt Dickerson had a remedy at law. He might have waited until the purchaser under Nelson’s execution brought ejectment.

But would this be as speedy or complete a remedy as in chancery ? Must Dickerson fold his arms till a cloud is cast over his title, rendering his property less valuable if he wished to dispose of it? Surely not. He is entitled to more speedy and effectual relief than to wait the designs or the convenience of the purchaser'on execution, to assert his title. Chancery will grant an injunction to prevent a party from using legal process for purposes of vexation or injustice. 2 Root, 109. h\ Hamilton v. Cummings, this question is elaborately considered by Kent, chancellor.

That was the case of a bond admitted to be void at law, the collection of which the heir of the obligor sought to have enjoined and the bond itself cancelled. The following remarks of the chancellor apply with equal force to this case as to that: D. H. Colerick and R. L. Walpole, for the appellant. R. Brackenridge, Jr., for the appellees. “It is not convenient or just that such a bond should continue with a pretension to assets in the hands of the plaintiff. It might embarrass their application, or weaken their security, or poison their enjoyment.

It is wrong for a person to retain a bond which is useless to him, and only an annoyance to others.” 1 Johns. Ch. R. 517. So, by analogy, it would be wrong to permit Nelson to make a sale of land on execution which would be wholly worthless to the purchaser, and only an annoyance to Dickerson. In Pettit v. Shepherd, 5 Paige 493, it was held that an injunction will be granted to stay a sale on execution, though the party have a perfect defence at law against the purchaser.

Equity will also enjoin a sale of real estate on execution where no valid title would pass, and where the sale would involve the title of the complainant in suspicion. 2 Ohio 470. “If,” says Walworth, chancellor, “courts of chancery have jurisdiction to set aside a deed made on sheriff’s sale, it seems to follow, as a necessary consequence, that they may interpose to prevent such a shade from being cast on the title, by enjoining the sale. 5 Paige 501. As further authority, may be cited 3 Ohio 72.—5 id. 178.—2 Paige 482.—6 id. 262.—3 How. 463.

These are all cases either directly in point, or analogous in principle, to the one under consideration. We think the Court erred in dissolving the injunction, and dismissing the bill. Per Curiam. The decree is reversed with costs. Cause remanded with instructions to the Circuit Court to make the injunction perpetual.