delivered the opinion of the court.
The complainant enjoined the prosecution of the action of ejectment brought by the heirs of Thomas Williams, deceased, on two grounds: First, that the purchase-money had been paid to the administrator, who had disbursed it to the creditors of the estate ; and, secondly, that an account should be taken of the permanent valuable improvements put upon the land, which should be charged upon it. The case is essentially in principle, as to the first ground of relief, like that of Graines v. Kennedy, ante, 103. It rests on the principle that if the money paid by the purchaser of the land is actually applied to exonerate the estate from debt, the heirs who receive the property, or recover it, are under a duty to refund. “ The advancement is the inception, the application is the completion, of the equity.” Porter v. Short, 44 Miss. 533, 535. The purchaser would have a charge on the land, enforceable against the heirs. Jayne v. Boisgerard, 39 Miss. 796. The complainant states a case, so far as the purchase-money is concerned, which is good, without reference to the statute of 1873.
It becomes unnecessary, therefore, to consider the question *117made by counsel, whether the legislature could legitimately pass that act.
This case, and others like it at this term, suggest the propriety of some observations as to the proper practice of enjoining pending actions of ejectment.
The application for an injunction is generally an admission that the plaintiff in the ejectment has the legal title, and must prevail in that suit. Unless the equity which is set up would, or ought to, draw to it the legal title, or would operate as an estoppel, and make it altogether inequitable for the party to assert his title, a court of chancery certainly ought to go no further with its preliminary restraining order than to prevent the execution of a judgment of recovery at law, leaving the plaintiff free to proceed with the trial at law.
Where the object of the chancery suit is not to deprive the plaintiff of his legal title altogether, or to prevent him from using it to recover the land, but merely to impose a pecuniary charge on the land, which the plaintiff at law ought to pay before he shall enter upon the land under his judgment at law, — in such cases the preliminary injunction ought not to restrain and impede the trial of the ejectment suit, but only postpone the execution of the judgment until the matters of equity may be investigated and decided.. There is manifest propriety and justice in this, for the complainant, after protracted litigation, may fail to establish his charge. • He has, however, delayed the plaintiff in his suit at law, and perhaps jeopardized his right, by loss of testimony from the death of witnesses or other casualties, and may still further postpone him by litigation in that court. The fact that the injunction had been granted is no reason why the plaintiff at law should not establish his title according to the rules of law. Wildy v. Bonney’s Lessee, 85 Miss. 77, 81. It is always in the power of the defendant who has been enjoined from further proceeding at law to move for a modification of the injunction, so far as to allow a trial of the action of ejectment; and it would be the duty. of the court to make the modification or not, according to the circumstances and character of relief sought. Ham v. Schuyler, 2 Johns. Ch. 140; Anderson v. Walton, Freem. Ch. 347. Indeed, the better practice is, where the defence is purely *118equitable, and the case is transferred by the defendant at law to the Chancery Court, to allow the action at law to proceed to judgment, so that the plaintiff may not be delayed in his execution, if the equitable defence fails. Eden on Injunctions, 58 ; Ham v. Schuyler, ubi supra.
The equity of the complainant on the first branch of his case is, that the purchase-money was paid to the creditors. If so, that does not estop the defendants from setting up their legal title at law; but it imposes a charge on the land which a court of equity would enforce. That would be done by requiring the plaintiffs to pay it, before they could take out execution on their judgment in ejectment; and, if not paid within the time limited, then that the land be sold to raise the money.
A statement of the complainant’s equity illustrates the impropriety of restraining the defendants further than from an execution of any judgment at law, but not impeding a prosecution of that suit to judgment.
The decree is erroneous in declaring that the payment of the purchase-money to the administrator, and. his payment of it in good faith to the creditors, worked an estoppel on the heirs to assert their legal title in the suit at law. The utmost effect of it was to impress a charge on the land for Billingsly to the extent of the actual appropriation of the money to the creditors. As between the parties the charge was a lien on the land, superior to the right of the heirs, which they must first discharge before they could reduce the land to possession ; and, if not paid, the land might be sold. The heirs would have the legal title with the property thus incumbered.
The complainant, as provided by the statute, could prefer and establish his claim for permanent, valuable, not ornamental, improvements in the suit at law.
The decree will be reversed and cause remanded, with directions to the Chancellor to ascertain how much of the purchase-money paid to the administrator was by him distributed to the creditors in good faith, and to declare that sum to be a charge for the complainant on the land; and, if not paid by the defendants within a reasonable time after they may recover in the suit at law, then the land may be sold; the injunction to be continued, not against the prosecution of *119the suit at law to judgment, but against the execution of the judgment, so far as obtaining possession is concerned, until the decree is complied with.
We do not think that the other matters set up as estoppels have been sustained. All other matters may be litigated in the suit at law. • Decree reversed.