Flournoy v. Silman

Warner, Chief Justice.

The complainant filed his bill against the defendants with a prayer for an injunction on the allegations contained therein, which the presiding judge refused to grant; whereupon the complainant excepted. The main grounds of equity alleged in complainant’s bill are, that he purchased fifty acres of land from one Tenable, for which he gave his negotiable note for $400; that Tenable transferred it to "Witt, wbo obtained judgment thereon against complainant; that when Witt pressed him for the payment of the note, one Mathens promised him that if he would make him a deed to the fifty acres of land he would pay off said note, which he failed to do; but, on the contrary, he has purchased the fi. fa. which issued on the judgment obtained on said note, of the administrator of Witt (the latter being dead), and the same is now the property of Mathens, who has had it levied on complainant’s land.

If the fi. fa. is the property of Mathens, and the fifty acres of land was conveyed' to him to pay that debt, as alleged, then it is paid, so far as Mathens is concerned, and an affidavit of illegality alleging such payment would have been an adequate remedy, inasmuch as he can now, under our practice, allege and set forth therein such equitable grounds of relief as he could obtain' in a court of equity. On the statement of facts disclosed in the record, we will not interfere to control the discretion of the chancellor in refusing the injunction prayed for.

Let the judgment of the court below be affirmed.