#### ISAAC LYERLY *against*CLAUDIUS B. WHEELER AND N. S. A. CHAFFIN.

Where a bill alleged that the plaintiff, a creditor of A., had succeeded in an action of eject"ment against him, and that there was a collusion between A. and B., (who claimed the land under deeds from A. void against creditors), by which the plaintiff was to be kept out of possession of the land;

*Held,*1, That the general charge of combination, collusion and fraud* can give the plaintiff no ground to stand upon in a court of Equity.

2, That the bill cannot be sustained as a ‘bill of peace’, because in such case the plaintiff must establish his rights by repeated actions at law.

3, Nor as an ‘injunction against destructive trepass’, for that case requires a title in the plaintiff, admitted, or proved at law, together with a trespass by the defendant inflicting permanent injury; and not a mere ouster or temporary trespass.

4, If B.’s claim to the land was under a deed fraudulent against the plaintiff as a creditor .of A, the remedy of the latter is by suit at law; for* although Courts of Equity will pass upon questions qf fraud of that character, when presented collaterally in a suit already constituted, they will not do so as a matter of distinct and independent jurisdiction, unconnected with any other equitable ingredient.

.This was an appeal from an interlocutory order of his Honor Judge Caldwell, dissolving the plaintiff’s injunction, at Rowan Court of Equity, Spring Term, 1853.

In March, 1843, the plaintiff filed a bill against the defendant Wheeler, and at June Term of the Supreme Court, 1848, he obtained a decree for a large sum *■,*upon which execution issued, and the house and lot.mentioncd in tire pleadings was sold, and purchased by the plaintiff1, who commenced an action of ejectment against Wheeler, took judgment, and sued out a writ of possession ; whereupon Wheeler enjoined the execution of the writ of possession, on the ground that the plaintiff, after his recovery in the ejectment, had leased the house and lot to him. The injunction was dissolved on the coining 'in of the answer, and the plaintiff again took out a writ of possession, which was not executed at the time this bill was filed.

In April, 1843, the defendant Wheeler executed a deed of trust to one Locke for the house and lot and other property to secure certain debts therein named. In December, 1846, Locke conveyed the house and lot and other property to the other defendant Chaffin, whilst the injunction of Wheeler against the plaintiff was pending. Chaffin commenced an action of ejectment against Wheeler and took judgment by default, and after the *268injunction was dissolved, and the plaintiff had taken out bis writ of possession, Chaffin also took out a writ of possession on his judgment. Locke and Chaffin are brothers-in-law of Wheeler, and Wheeler has been in possession of the premises all the time.

The plaintiff alleges that the deed from Wheeler to Locke was fraudulent and void, and was intended to defeat him and thé other creditors of Wheeler; that the deed from Locke to Chaffin was also fraudulent and void, and that there is a combination between the defendants to keep Wheeler in possession, and to deprive the plaintiff of the benefit of bis writ of possession — for which reason Chaffin took his judgment in ejectment, and held his writ of possession with a fraudulent understanding that as soon as the plaintiff was put in possession by the sheriff, Chaffin would have the plaintiff put out of possession by force of the writ of possession upon his judgment, and immediately restore Wheeler to the possession. The prayer is for an injunction urestraining *“*Chaffin and his confederates from interrupting the execution of “your orator’s writ of possession, or of depriving him of the *“*same, by executing their false and fraudulent writ of possession *“*in the name of N. S. A. Chaffin, and that your Honor will “ decree that your orator will be quieted in his possession under “ his writ, when obtained thereby •” then there is a prayer for process, and after many interrogations, the bill concludes with a prayer for *“*all sucl^ other and further relief as the nature of his case maji- require.”

The defendants aver that the deed from Wheeler to Locke was *bona*fide, and with the intent to secure the payment of just debts — among others, the debt due as the price of the house and lot. They also aver that the deed from Locke to Chaffin was *bona fide,*and for a full price, in fact more than could have been obtained from any body else. Chaffin admits that as Wheeler had married his sister, he was willing for them to continue in the possession of the house and lot until he could meet with a good opportunity to make a re-sale ; and he avers that in the meantime he was very anxious to have the conflicting claims of the plaintiff and himself fairly decided by an action at law, but the plaintiff declined doing so, and took a judgment against Wheeler, not on the strength of title, but on the technical ground of his being a *269purchaser at Sheriff’s sale ; whereupon he employed counsel to take judgment against Wheeler also in an action of ejectment, anc^ left it to the discretion of his attorney when to take out his writ of possession — which he believes he would have done before the plaintiff’s bill was filed, but for his receiving notice-of the plaintiff’srintention to apply for an injunction. He denies that there was any combination between him and Wheeler, and avers that he acted with a single purpose of protecting his rights under the deed from Locke. Wheeler avers that the plaintiff, after his recovery in ejectment, did rent the house and lot to him, and that he had good ground for his injunction against the plaintiff’s writ of possession. He denies that there was any combination between him and Chaffin, or that there was any understanding between them by which Chaffin was to aid him in holding on to the possession ; and he says that as the maker of .the deed to Locke, under which Chaffin claims, he could make no defence to the action of ejectment, if he had been disposed to do so, but he believes Chaffin has a good title, and that the title of the plaintiff is an unjust one.

*Oraige,*for the plaintiff.

Boyden, for the defendants.

Puarson, J.

We might content ourselves with affirming the order dissolving the injunction on. the ground that the allegations of the bill are fully answered ; but that might tempt the plaintiff to proceed with his bill, in the hope of being able to disprove the answers, and thus costs would be incurred unnecessarily ; for which reason we think it best to put our decision on the ground that, according to the plaintiff’s own allegations, he does not entitle himself to the interference of a Court of Equity.

A general charge of combination, collusion and fraud, no matter how often intimated, does not give a plaintiff any ground to stand on in a Court of. Equity : He must bring his case within some distinct principle or head of equity jurisdiction. Admit that there is a combination between Chaffin and Wheeler, by which the latter is. to be allowed to remain in possession as long as he can hold off the plaintiff, and the former is to be ready to interfere and turn the *270plaintiff out as soon as he shall take possession under his writ, and put Wheeler back into the possession again ; and that Chaffin took the judgment in the action of ejectment, in order to have a writ of possession ready for that purpose ; — and the question is, does *the*plaintiff’s case fall under the head of any equity jurisdiction ? The answer is, it does not, for two reasons — the plaintiff *has not established his title at lawj*and *no irreparable injury is threatened.*

From the special prayer, that the plaintiff may be quieted in his possession, when he obtains it under his writ of possession, and that the defendants may be enjoined from depriving him of such possession by executing their false and fraudulent writ of possession, the idea seems to have been that the plaintiff’s case falls either under the head of a “ bill of peace ” or of *“*injunction against destructive trespass.”

In regard to the former, it is settled, “ where the plaintiff has, after *repeated and satisfactory*trials, established his right at law, equity will interfere to suppress'future litigation of the right.” “ However, Courts of Equity will not interfere in such cases, before a trial at law, nor until the right has been satisfactorily established at law. — But if the right is satisfactorily established, it is not material what number of trials has taken place, whether *two only,*or more.” Story’s Equity, sec. 859.

In regard to the latter it is settled, “ an injunction will lie for protection of a title *admitted or proved at law,*whenever the act complained of is not a mere ouster or temporary trespass, but is attended with permanent results, destroying or materially altering the estate j” as, for example, if a man be pulling down his neighbor’s house or the like. If it be a mere *ouster or temporary trespass,*the recovery of the law by an action of ejectment or of damages by an action of trespass are sufficient remedies, and an injunction will not lie.” Adams’Equity, 210, and *note thereto,*— “there must be something particular in the case, so as *to*bring the injunction under the head of quieting the possession, or pi-eventing irreparable injury ” for which *Livingston*v. Livingston, 6 Johns, Ch., R. 497, is cited.

The plaintiffs’ proper course, therefore, was to take possession under his writ, and if Chaffin ousted him, the remedy was to bring an action of ejectment against Chaffin, in which the title at law *271could be tried. Until the plaintiff does try his title at law, no matter what he may allege as to combination and conspiracy to disturb his possession, and interfere with his enjoyment of the property, equity cannot interfere ; for until then he has not shown himself entitled to the possession or the property, and consequently he has nothing for a Court of Equity to protect.

From the general prayer with which the bill concludes, it may be that the plaintiff supposed he had a right to relief in equity upon the ground that the deed from Wheeler to Locke was fraudulent as to creditors, and the deed from Locke to Chaffin was also fraudulent as to creditors ; and so both deeds were void under the Statute of Elizabeth. If so, the plaintiff has a clear remedy at law. The real matter of contention between him and Chaffin is whether the deeds, under which the latter claims, are fraudulent as to creditors, that depends upon the intent with which they were executed and is a matter peculiarly fit for the investigation of a jury. It is true, when a question of the kind is presented collaterally in a suit already constituted in a Court of Equity, that Court will either decide it or have it tried at law ; but the Court will not take a distinct and independent jurisdiction, unconnected- with any other equitable ingredient, in order to try a mere question of fraud against creditors under the Statute of Elizabeth — because it is purely a legal question.

It is proper to add that both defendants fully deny the allegations of fraud in reference to these deeds, and aver that they were executed *bona fide*and challenge the plaintiff to a trial of that issue before a jury.

Per Curiam. Interlocutory order dissolving the injunction affirmed.