#### Franklin A. Miles *vs.*Finklea G. Wise, Adm’r, and others.

*Jurisdiction*— Injunction— *Equitable Estate.*

Where one has acquired a good equitable title to slaves through the distributees —there being no creditors — of an intestate, the former owner of the slaves, upon whose estate no administration had then been granted, equity will restrain one who afterwards takes out letters of administration upon the estate of the tntesate, from prosecuting an action of trover for the conversion of the slaves, against such equitable owner.

BEFORE DUNICIN, OH., AT MARION, FEBRUARY, I860.

Franklin A. Miles filed his bill on the 13th day of February, 1860, stating, among other things, that on the 3d day of February, 1849, he purchased from Joseph Bird, Hugh G. Bird, John Blackman, Jr., and wife Ann, Mary Owens, Wilson Herrin and wife Maria, a negro woman named Hannah and her child Dick — that they represented themselves as the rightful owners of said slaves, under the will of their mother, Elizabeth Bird; that until some time in the year 1858, he retained the undisputed possession of said negroes; that in 1857 the defendant, Finiclea G. Wise, obtained letters of administration upon the estate of Alafair Bird, who departed this life intestate, unmarried, without issue, and free from debt, about the year 1841 or’42; that said Wise, administrator, shortly after commenced an action of trover in the Court of Common Pleas for Mariou district, against complainant, for the conversion of said slaves, and the other children of Hannah, born since the purchase by complainant, which action is pending and pressed for trial; that he has learned upon inquiry that the slave Hannah was the property of Alafair Bird, she having acquired it under the will of her father, Arthur Bird, who died in 1835 ; that Alafair Bird was *537unhealthy and partially idiotic, and her brothers and sisters made an arrangement by which she was to be supported, living with her mother, Elizabeth Bird; that with this view, Joseph Bird, Hugh G. Bird, Anua Bird, and Mary Ann Bird conveyed all their interest in remainder in two other slaves bequeathed to the said Alafair Bird, by the will of her father, to Edmund Herrin and Wilson Herrin, who had married sisters of said Alafair, in consideration of their contributing a certain sum for the support of Alafair, which sum was to be paid to Elizabeth Bird, the mother; and to Elizabeth Bird, the mother, the same parties conveyed the slave Hannah and her increase, after the death of Alafair.

The bill then charged that Elizabeth Bird, the mother, Hugh G. Bird, a brother, and Mary Ann and Charlotte, sisters, were the only heirs and distributees of Alafair Bird ; that the other children of Arthur Bird and Elizabeth, to wit, Joseph, Maria, Peter, (the father of Ansy, wife of Fiuklea G. Wise, and Peter, her brother,) and another daughter, after-wards intermarried with Phillip Owens, were illegitimate, having been born previous to the marriage of their parents ; that consequently, as assignee of all those rightly interested in the estate of Alafair Bird, the complainant has an indisputable title to the slaves, Hannah and her children, but that this title he cannot so well set up, under the strict rules of the common law, in his defence to the action of trover; that the administration granted to the defendant Wise is unnecessary, except for the purposes of partition; that a recovery by the said administrator, in the action of trover, would render it necessary for the complainant to file his bill for partition, and to be substituted for his assignors in said partition; and that the course pursued by the defendant Wise, tends unnecessarily to harrass and disturb the possession of the complainant, and to multiply suits.

The bill prayed primarily for an injunction, restraining the action of trover.

*538The *motion for*an injunction was made at Marion, Monday, February 20, 1860.

On the same day the defendant, Wise, filed his answer, admitting the purchase, by the complainant, of the slaves Hannah and Dick, from the persons in that behalf in the bill named, but denying all knowledge of the consideration paid, or of any representations made by the vendors at the time; admitting, further, the apparent title acquired by said vendors, under the will of Elizabeth Bird, and the long continued adverse possession of the complainant; admitting, further, the grant of administration to the defendant upon the estate of Alafair Bird, made on the 23d November, 1857; the death of said Alafair, about the time stated in the bill, unmarried and without issue, but not, so far as known to defendant, free from debt; and the commencement and pendency of the action of trover against the complainant. The answer further admitted the bequests to the intestate, by her father, Arthur Bird, of the absolute estate in the negroes Hannah and Dick; the partial idiocy of Alafair Bird, and the arrangement substantially stated in the bill, as made by the brothers and sisters of the intestate, disposing of certain property belonging to her, and including the negroes Hannah and Dick, but denies that this arrangement was made with her consent, and charges the motive inducing such arrangement to have been self-interest on the part of the parties thereto. The answer denied, the unlawful cohabitation, before actual marriage, of Arthur Bird and Elizabeth his wife, or the illegitimacy of any of their children, and claimed that Ansy Wise, (wife of the defendant,) and Peter Bird, her brother, (representing their father, Peter Bird, a brother of Alafair,) were lawful heirs and distributees of Alafair. Ansy Wise was stated to have been twenty-five years of age, and Peter Bird twenty-two, at the date of the grant of administration.

The answer submitted, that the title to the slaves in controversy being in the defendant, as administrator, the Court would, if it entertained jurisdiction, decree a specific delivery *539to him pf the said slaves, but submitted, further, that, as the matters aud things stated and complained of were all determinable at law, the complainant was not entitled to relief in the»Court of Equity.

His Honor made the following order, to wit:

Upon hearing the bill aud affidavits, and the answer of Finklea G. Wise, the defendant, it is, on motion of Harllee & Graham, complainant’s solicitors, ordered, that the defendant, Finklea G. W’ise, administrator of Alafair Bird, be enjoined from further prosecuting his action of trover against the plaintiff, at law, for the recovery of the slaves Hannah and her children, mentioned in the pleadings, until the further order of this Court, aud that a writ of injunction do issue accordingly.

The defendant, Finklea G. Wise, administrator, appealed on the ground :

That the Court of Equity has no jurisdiction in the premises.

*Inglis,*for appellant,

cited *Brown vs. Dickinson,*10 Rich. Eq., 408.

*Dargan,*contra,

cited Riley Ch., *33; Hughson vs. FFallace,*I Rich., 1; *Marsh vs. Nail,*Rich. Eq. Cas., 115.

The opinion of the Court was delivered by

O’Neall, C. J.

In this case I concur in the decree of the Chancellor.

The single question presented by the grounds of appeal is, “that the Court of Equity has no jurisdiction in the premises.”

The Court of Equity has jurisdiction to prevent the assertion of a legal right, against a *plain equitable right.*This principle is as old as the Court, and has been asserted and carried out in innumerable cases.

Here the party complainant is in possession, under a purchase from the alleged distributees of the deceased, nine years before the administration of the defendant. This in*540testate died seventeen years before the grant of administration. She was in her lifetime unhealthy and idiotic, and at her death was free from debt, as alleged in the bill. Taking this case, it is plain that the complainant has made out a case entitling him to the relief of the Court of Equity. The case of *Marsh and wife vs. Nail and*others, Rich. Eq. Cas., 115, is a conclusive authority in his favor.

But it is supposed that *Brown vs. Dickinson,*10 Rich. Eq., 408, stands in his way. I do not think so. In that case the complainant’s right depended upon a deed which was supposed to constitute a separate estate in Mrs. Sessions, his grantor. The bill sought a discovery of *that*which he did not obtain. That closed the Court of Equity against him ; and the case was properly left for the Law Court. There is no such difficulty in this case.

The defendant’s answer sets up no debts ; after a lapse of seventeen years, and from the condition of the intestate, the presumption is she owed none. The only contest set up is as to the legitimacy of two of the children of Arthur Bird and Elizabeth, his wife, (sister and brother of the intestate.) This question cannot be tried in the action at law; it must be tried in the Court of Equity, where the case is brought by the complainant. There can be no propriety, under these circumstances, of allowing the defendant to litigate at law, and disturb the complainant’s possession. The circuit decree of Chancellor Dunkin is affirmed.

Johnstone and Wardlaw, JJ., concurred.

*Decree affirmed.*