#### Gray v. Overstreet & als.

April Term. 1851,

Richmond.

(Absent Cabell, P.)

Injunctions—Dissolution—Before Final Hearing.*—Under the circumstances of this case, it was error to dissolve the injunction, before the cause was matured and came on for a final hearing1.

On the 5th of October 1844, James Gray presented to the Judge of the Circuit court of Bedford county, a bill, in which he al*146leged that, on the 6th of October 1838, he purchased of George Overstreet, of Bedford county, a tract of land in that county, containing about 320 acres, which was described in the written and sealed contract exhibited with his bill, as “the tract of *land on which he Overstreet lives, it being the same he bought of John West, also the land that Overstreet bought off of Miller’s tract, and thirty odd acres that he bought of Jesse A. Bramblett, about 320 acres in all;” and that it was further set forth in said written contract, that the plaintiff was “to give five dollars per acre for all excepting the part that Overstreet had run off for Joel Richards, say forty odd acres, for which he was to give four dollars per acre, to be paid for as follows: six hundred dollars in hand, and the balance to be divided into four annual payments;” that the plaintiff went on to pay the 600 dollars from time to time, as' Overstreet wanted it, until the 6th of March 1839, when he completed the cash payment, and executed four bonds for the deferred payments for 2S0 dollars each, payable on the 25th day of December in 1839, 1840, 1841 and 1842, which was the full contract price for the whole tract, made up as aforesaid of three smaller tracts. And he called the attention of the Court to the fact, that in the bond payable in 1842 the two hundred and fifty dollars therein promised to be paid on the 25th December in that year, is said .to be “the fifth payment of two tracts of land, one of which formerly belonged to Thomas West, and the other to William Miller.” “But he charged that, in fact and in truth, the said bond was executed as the last payment for the 320 acres Of land mentioned in the contract aforesaid, including the thirty odd acres bought of Jesse A. Bramblett.”

He charged that the said thirty odd acres bought of Bramblett, were part and parcel of a larger tract by him bought of William Dickenson, containing acres, at the price of dollars. For this tract the said William Dickenson never executed to him any deed, but retained in himself the title as a security for the purchase money.

*The bill proceeds to state that Bramblett, having absconded from the State, Dickenson proceeded to • make what he could by a sale, &c., of the residue of the land, which fell short, by 300 dollars, of the purchase money due to him, and had instituted a suit in chancery against the plaintiff, to charge the said sum of 300 dollars on the thirty odd acres of land aforesaid still remaining in his possession.

The plaintiff further stated, that he had never got any title to the thirty odd acres, though he had paid off the bonds for 250 dollars each due in 1839, 1840 and 1841, and had moreover paid 85 dollars on account of the last bond. He averred also that the thirty odd acres was wood land and very valuable to him, and that he would gladly pay the balance due on the last bond to obtain a title for it. No title, good or bad, has ever been made to him by Overstreet, nor can he make such title.

Finally, the plaintiff stated that Over-street had unjustly assigned the last obligation to S. C. Hurt & Co. who had sued and were about to obtain judgment against him, to wit, at the October term 1844, of said Circuit superior court.

On these grounds he asked an injunction, which was granted.

On the 14th of April 1845, the assignees of the-obligation, who had obtained judgment in the preceding October, filed their answer. They deny, on the strength of a letter said to have been received by them from Overstreet, (who, after assigning to-them the last bond in September 1843, had removed to the west,) that the thirty odd acres of land got by Overstreet of Bramblett was any part of the consideration of the fourth or any- bond given by Gray to Overstreet.

They allege that the bond was assigned to them with the full knowledge, con-

sent and approbation of *the plaintiff, with a knowledge on his part at the’ time, that the said Overstreet would remove from this Commonwealth in a short time thereafter, who, so far from intimating any objection to the payment of said bond on account of a failure of the consideration, or otherwise, expressed himself well pleased and satisfied with the arrangement, because, as Overstreet was about to remove, he would want the money' for the bond immediately, in the event he did not dispose of it, and that if the defendants obtained the bond, they being stationary' here, engaged in the mercantile business, and the complainant being one of their customers, he could get some indulgence on the same and be relieved from the necessity of immediate payment to Overstreet. It was under these circumstances that these respondents were induced to take the said bond, for which they paid a full and valuable consideration.

They insist that the plaintiff having signed a paper, (the bond,) stating that the consideration thereof was two tracts of land, viz: the Miller tract and the West tract, has no right to set up as against them that the Bramblett tract was a part of the consideration.

In September 1845, the absent defendant Overstreet (having given security for costs)-, filed his answer.

He says “that the bond for 250 dollars, assigned to S. C. Hurt & Co. was given for the consideration stated on its face, to wit, ‘as the fifth payment of two tracts of land, one of which formerly belonged to Thomas West, and the other to William Miller;’ and that no part of the consideration of said bond is ‘for thirty odd acres bought of Jesse A. Bramblett,’ nor did the complainant ever execute to this respondent his bond for the purchase money, or any part thereof, of the land that was purchased of Bramblett; nor does this respondent believe that the complainant has ever, at any time, paid to this respondent, or to any person *147for him, any sum on account of land purchased of Bramblett; nor *is he bound to this respondent, in any manner, for the purchase of the same. It is true, that at one time, there was a contract between this respondent and complainant for the purchase of a small tract of land obtained of Bramblett, in addition to the West and Miller tracts; but when the complainant came to execute his bonds, he executed them in consideration of, and for the price of the Miller and West tracts alone, one of which is the bond assig-ned by this respondent to S. C. Hurt & Co., to which tracts the complainant has a good and perfect title; and it was agreed that the complainant should pay Bramblett for the land which had been purchased of him, and look to him for the title; the complainant preferring that arrangement because Bramblett was indebted to him, which debt, this respondent is informed, was actually taken in by Bramblett in payment of the said land; so that, by the arrangement, this respondent had nothing to do with receiving the pay for, or making a title to the land that had been purchased of Bramblett.”

He adds that “he assigned the bond to S. C. Hurt & Co., with the knowledge and consent of the complainant; and although it was known for a long space of time that this respondent was about to leave the State, the complainant never intimated to him that he had the slightest defence to make to said bond, or that he conceived this respondent in any manner liable to him for the title to the land bought of Bramblett.

The documentary evidence filed in the cause, (it does not always appear in the record by whom,) consists of two deeds, a copy of the contract of October 6, 1838, and a copy of the obligation sued on, which bears date March 6th, 1839. One of the deeds, from Overstreet and wife to Gray, dated November 20, 1838, conveys “one hundred and thirty-four and three-fourths acres and thirty-one poles,” for the consideration of 643 dollars 72 cents. The

other, from the ‘same grantors to the same grantee, conveys 161)^ acres, for the consideration of “eight hundred and seven and half dollars. ’ ’ Total quantity of land 296 acres, 1 rood and 31 poles. Total consideration 1451 dollars 22 cents.

The deposition of Alexander A. Smith completes the record. He was examined by the plaintiff on the 30th of September 1845, two days before the successful motion to dissolve. He said that “he was present when the contract between Gray and Over-street was closed, which was in the early part of March 1839. The bonds were executed at that time by James Gray to George Overstreet, who was present, and he understood from all parties the bonds were for the purchase money of all three of said parcels of land, including the thirty odd acres which Overstreet bought of Bramblett. There were four bonds of 250 dollars each, due in one, two, three and four payments. A part of the money—the amount he did not remember—was paid down at the time the bonds were executed for the balance due, in the four payments above mentioned.”

This deposition was objected to for want of notice to the defendants Hurt, Preston, and Overstreet. It appeared that Heftwich,. one of the partners of the firm of S. C. Hurt & Co. was present with his counsel at the taking of the deposition, and the commissioner who took it certified it as taken pursuant to notice; but the notice was not returned.

The cause came on in October 1845, upon a motion to dissolve the injunction, when the same was dissolved. Whereupon Gray applied to this Court for an appeal, which was allowed.

John R. and John E). Cooke, for the appellant.

Stanard and Bouldin, for the appellee.

*

See principal case cited in Walker v. Hunt, 3 W. Va. 495; IS. & O. R. R. v. Wheeling, *3 W.*Va. 375. See monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

*AIvIvE)N, J.,

delivered the opinion of the Court.

The Court, without deciding upon the merits of the controversy, as such decision would be premature until the case was matured and came on for final hearing, is of opinion, that upon the motion to dissolve, the Court erred in dissolving the injunction. Order dissolving the injunction reversed, with costs to appellant. Injunction reinstated, and cause remanded in order that the same may be matured for hearing and a final decree.