#### *Marshall v. Colvert and Others.

March, 1834,

Richmond.

[27 Am. Dec. 589.]

(Absent Tttoker, P„ and Cabem., J.)

Equity Jurisdiction — Property Mortgaged to Indemnify Surety — injunction against Execution on.* — O. mortgages slaves to M. to indemnify him against loss by reason of suretyship incurred by him for C., then creditors of C. levy writs of fi. fa. on the mortgaged slaves : it being yet uncertain whether M. will sustain loss by reason of his suretyship, and if so to what amount, M. flies a bill in equity, praying an injunction to prevent the sale oi the slaves under the executions ; and the chancellor awards an injunction, not to inhibit the sale, but to inhibit the sheriff from paying oyer the proceeds thereof, till further order; but he afterwards dissolves this injunction : upon a question, whether the court of chancery had jurisdiction, and whether the plain till' ought not to be left to pursue his remedy at law: Held, the case is proper for relief in equity, and the injunction ought to be reinstated.

John Marshall being bound as surety for William Colvert executor of Samuel Colvert deceased in his executorial bond, and becoming apprehensive of loss by reason of his suretyship, Colvert, by deed dated the 7th March 1824, and duly recorded on the 8th April following, conveyed to Robert Colvin a parcel of 175 acres of land, and fifteen slaves by name (seven of which slaves were bequeathed to him by his testator, and six others were purchased by him at his own public sale of his testator’s estate), upon trust to indemnify Marshall against loss by reason of any waste or maladministration by Colvert of his testator’s *64estate, with power to the trustee to sell the slaves first, and apply the proceeds thereof to the purpose of the trust, and if that fund should -prove insufficient, then to sell the laud. After this deed was recorded, three writs-of fieri facias, and five writs of capias ad satisfaciendum, upon judgments against Colvert, were sued out and delivered to the sheriff. The writs of fi. fa. were levied on twelve (beingiall then living) of the slaves mortgaged by the deed of trust to Marshall; and Colvert being taken on the writs of ca. sa. took the benefit of the statute for the relief of insolvent debtors, surrendered in his *schedule his equity of redemption in the subject mortgaged to Marshall, and was discharged from custody.

While the slaves taken under the writs of fi. fa. were in the sheriff’s hands, Marshall exhibited his bill, in the super-iour court of chancery of Fredericksburg, against Colvert, the sheriff, and the judgment creditors; setting forth the mortgage executed by Colvert for his indemnification; shewing, that he was exposed to danger of loss, though to an unascertained amount, by reason of waste committed by Colvert of the assets of his testator's estate, and particularly, that there was a claim against the estate, upon a decree against the testator in his lifetime, from which an appeal had been taken, and was then pending in the court of appeals; shewing also the executions sued out against Colvert by his creditors, the levy of the writs of fi. fa. on the mortgaged slaves, and the surrender by Colvert of his equity of redemption for the benefit of the ca. sa. creditors; and praying an injunction to inhibit the sheriff from proceeding to sell the slaves until further order, and general relief.

The chancellor, in vacation, awarded an injunction to restrain the sheriff, not from selling the slaves, but from paying over the proceeds of his sales thereof, to the creditors in the executions, or any of them, until further order.

The sheriff proceeded to make sale of the slaves; and then put in his answer to the bill, with which he exhibited an account of his sales of the slaves, shewing 1721 dollars, net proceeds, in his hands. Whereupon the chancellor ordered him to deposit the money in the Farmers Bank at Frederickburg, subject to future order in the cause. The deposit was made accordingly.

But one of the creditors answered; and he only insisted, that, as his fi. fa. had been the first delivered, he was entitled to have satisfaction out of the balance that should remain after satisfying the purposes of the deed of trust under which Marshall claimed, in preference to any other of the creditors by execution.

The chancellor, upon motion of the defendants, dissolved the injunction; and Marshall appealed to this court.

*In the argument of the cause here, by Stanard for the appellant and Harrison for the appellees, nothing was said touching the merits.

Harrison objected to the jurisdiction; suggesting, that Marshall might have brought trespass in the name of his trustee, against the sheriff, for taking the property, or detinue for the slaves, as to whom he wanted no discovery or account, and asked none; and so the case was not proper - for relief in equity.

Stanard answered, that the mortgage under which Marshall claimed, provided an indemnity to him against an apprehended loss, of which the amount was unascertained and unascertainable, at the time he exhibited his bill: the loss might never occur; it might occur at a distant day; it could only be ascertained by an account of ColverFsadministration. The interference of the court of equity was necessary to prevent the property from being sacrificed at a sale by the sheriff, subject to such an incumbrance, and dispersed into many hands; and it was-as necessary- to the interests of the creditors and the purchasers under the executions, as it was for the protection of Marshall. Besides, the relief which the chancellor gave him by his order in vacation, was an injunction, not to prevent the sale by the sheriff, but to prevent him from payingover the proceeds, so as to preserve the fund for his indemnification. This injunction was allowed under the prayer of the bill for general relief; and it was a mode of relief entirely proper and judicious, and such as a court of equity alone could give.

*

See monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Graft. 518.

BROOKE, J.

It was only in a court of equity, that the claim of Marshall could be adjusted. He claimed indemnity against his suretyship for Colvert; and as no fraud in the deed of trust is proved or alleged, that deed gave him priority over the executions. The only creditor, who answered the bill, claimed priority to any of the other creditors, out of the surplus after the purposes of the deed of trust were satisfied. An account ought to have been taken, the amount of the responsibility of Marshall for Colvert ascertained, *and the surplus, if any, applied to the payment of the executions, according to the priority thejr gave to the proceeds of the property. The decree is reversed, the injunction reinstated, and the cause remanded! for further proceedings.