There is no dispute in this case that the attorney of the plaintiffs in an execution in a sheriff’s hands, on which a sale of lands had been advertised to be held at a certain time and place, gave the sheriff, before the sale was made, explicit orders not to sell, and offered him the fees and costs of the proceedings up to that *419date, and indeed beyond, and that the attorney of the plaintiffs, relying upon his expectation that the sheriff would obey these orders, did not attend at the advertised place of sale.
The attorney of other parties, strangers to the record, knowing that the sale had been ordered off as above stated, and that the plaintiffs’ attorney was absent, persuaded the sheriff, for the benefit and advantage of these strangers to the suit, to go on with the sale against the express direction of the plaintiffs’ attorney. The sheriff, without notice to the plaintiffs’ attorney, made the sale, the other parties purchased one lot for $10, and the wife of the defendant in execution purchased the other for $72. These prices are obviously merely nominal, and the effort, to maintain this sale, made jointly by the York Manufacturing Company, Mr. Marshall, the defendant in execution, and Mrs. Marshall, his wife, are just as obviously intended to hinder and prevent the application of Marshall’s assets to the payment of his debts, as the defendants’ affidavits candidly admit that they wanted the sale to be made because other creditors were pressing for judgment, who might, if the sale was postponed, get liens before the title could be gotten out of Marshall’s name. Now that this object has been accomplished, the defendant Marshall is foremost in the struggle to protect the title of his wife and of his favored creditor, who have, by this device, become purchasers.
It is of no significance, under the circumstances of this case, whether the defendants knew of the assignment of the judgment or not; they all knew that it was outstanding, and that the writ was active, and that the attorney of the plaintiffs of record-ordered the sale not to be made. It was no concern of the defendants for whose benefit as plaintiff these proceedings were had, as they made no effort and had no wish to pay the judgment.
The same plaintiffs’ attorney had at all times the control of the proceedings; this all the defendants knew, and they took the steps they did take because they knew that this attorney had -ordered the sale to be stopped.
Nor do I think it of essential importance whether the lands •obtained to be sold on the plaintiffs’ execution against this.plaint*420iff’s express orders brought a high price or a low one. It does not lie with strangers to the record to assume the control of the proceedings on the execution in the absence of the plaintiffs and against their directions and then to excuse this conduct by insisting that the sale realized the highest possible value. So far as the sheriff was concerned, he liad no responsibility in the execution of this writ as to the time when the land should be sold except to the plaintiffs in execution. He was notified by the plaintiffs not to make the sale, and had received from them his costs and expenses to that date. He was thus relieved from the exercise of the discretion ordinarily vested in him as to the adjournment of a sale. His action in consulting strangers to the record and using the writ of execution, and the sale for their benefit and for the purpose of preventing unsecured creditors from obtaining, by judgment, liens on the lands to be sold, was not only a surprise to the plaintiffs in execution, who failed to attend the sale because they had ordered it postponed, but was also a fraud upon the plaintiffs by which they were deprived of the benefits to which they were entitled in exercising their own discretion as to when they would compel a realization to satisfy their judgment. The result of the sheriff’s action shows the success of the fraud perpetrated upon the plaintiffs. The York Manufacturing Company, one of the parties, who, through its president and its attorney, procured this sale to be made, became the purchaser of one lot at a nominal sum, and the wife of the defendant in execution became the purchaser of the other lot at a sum which seems to have been purposely placed at an amount sufficient to satisfy the plaintiff’s debt and costs on the writ. By procuring this sale to be made in the absence of the complainant, the defendant’s wife has been able to obtain the title to lot No 2 under the complainant’s judgment as of the date of its entry on the 28th day of October, 1896, and in this way to cut out the mortgage on this lot No. 2, held by the complainant, which was not recorded until the 30th day of October, 1896. The York Manufacturing Company by this process also obtained its object in securing the title to lot No. 1 for a nominal sum, preventing the other creditors who were pressing for judgment from securing any lien on the defendant’s property.
*421I should hesitate, in an ordinary case, to advise the issuing of a restraint against the delivery of deeds under a sale on a fieri faoias issued out of a court of law; but under the peculiar circumstances of this case, it is not the regular proceeding of a court of law which is sought to be checked. The injunction, if issued, will restrain not the regular, but an improper use of the process of that court against the orders and interests of the parties who are entitled to control it. The action of the sheriff in this case, against the plaintiffs’ attorney’s orders and in his absence, and after he had paid the costs, in associating himself with strangers to the suit and using the writ for the benefit of the defendant and a favored creditor, and to prevent other creditors from acquiring liens, was, in my judgment, not only in direct defiance of a command which he was bound to obey, but was also such a surprise and fraud upon the rights of the holders of the judgment that this court may and ought to take cognizance of the matter to prevent the success of the scheme. There is an exigency here for which adequate relief can only be had in this court. Uo report and order of confirmation of this sale would be necessary to put title in these purchasers. The sheriff can at once execute and deliver these deeds upon mere affidavit and approval of a justice of the peace or master, unless restrained by the writ of injunction from this court, and his conduct has indicated an entire willingness to act, not for the interests of the holders of the execution by which he is empowered, but against those interests and for the benefit of strangers to the record.
The facts are not disputed. On the contrary, it is frankly avowed that the York Manufacturing Company and its attorney (who is also the attorney for the defendants in the execution) and the defendants have joined forces for the purpose of procuring the sale to be made for their own benefit, against the plaintiff’s orders and just expectation.
It is claimed by the defendants that a notice of lis pendens filed secures to the complainant sufficient protection without the use of the writ of injunction. Before the statutory provision which requires the filing of notice of lis pendens, in order to charge a purchaser with notice of the suit, the rule was estab-
*422lished not only that bill must have been filed, but subpoena must also have been served, before persons deriving title from the litigants would be bound by the decree. Since the statute, the additional incident of notice filed is necessary to charge a bona fide purchaser or mortgagee from a litigant with theoblh gations of the decree. Houghwout v. Murphy, 7 C. E. Gr. 547. When, as in this case, there are non-resident defendants, who can only be brought into court by publication, it is doubtful whether a purchaser from such a defendant before the expiration of the period of publication, would be affected by the decree. An assignee who took his assignment after bill filed, but before subpoena served, has been held to be a necessary party. Powell v. Wright, 7 Beav, 444. It is only at the conclusion of the period of publication, and on proof of observance of the directions of the order, that the non-resident defendant is in court, as in case of subpoena served. The contracts of sale under the execution in this case are still executory, and the only complete remedy which the complainant can have is to prevent their further execution, for if title be permitted to be made under them, the complainant may be compelled to bring several suits to secure its rights, which can here and now be settled in one.
I think, under the exigency here shown, and on the ground of the fraud and surprise sprung upon the complainant, and the misconduct of the sheriff in using the plaintiffs’ writ against the attorney’s orders, I ought to advise that the order to show cause be made absolute and that injunction should issue restraining the delivery of any deeds by the sheriff under this sale. I will so advise. .•