No. 96.

#### James Morris, plaintiff in error, *vs.*S. M. Bradford and G. Walker, defendants.

[1.]- To leave a copy of a bill in Chancery at the residence of the defendant, is a sufficient service, and also *prima facie*of an injunction; but in a proceeding against defendant, for a contempt, he may purge himself of it, by a sworn denial of notice of the injunction.

[2.] A plaintiff in *fi. fa.*or his assignee, purchasing land under such *fi. fa.'*the same having been enjoined, and there being a decree of a Court of Chancery, to which the plaintiff was a party, postponing it to other charges against the land, acquires no title by said purchase.

Ejectment, in Whitfield Superior Court. Tried before Judge Trippe, April Term, 1855.

This was an action brought by Bradford & Walker against Morris, to recover possession of lot No. 97, 13th dist. 3d sec. of said county. The land in dispute had been the property • of Thos. Glascock, late of Richmond Co. The plaintiff, after showing the grant to Glascock, produced a deed to themselves, made by John Milledge as receiver of said estate, in pursuance of sale made under the authority of the Court of Equity of said county. Deed dated Oct. 5th, 1817. The-plaintiffs then introduced the record from Richmond Superior-Court, of a bill filed by certain parties, distributees of a certain estate, of which Glascock had been administrator, alleg- - ing that Glascock had funds of theirs in his hands; that there were in existence several judgments against him, and they prayed an injunction against said judgment creditors, from enforcing their executions, and claimed that the estate of Glascock should be applied to pay off their demand, in preference to others.

To this bill Geo. W. Crawford, among others, was made a., *528party defendant as a judgment creditor, and the following is< the entry of service as to him:

*u*Left a copy of the within bill of injunction at the residence-of George W. Crawford, one of the defendants, this day, December 11th, 1841.

WILLIAM Y. KEE, Sheriff R. C.”

There was no answer of Crawford to the bill. The following is the decree in the cause : ■

Now at this term, 1844, comes the parties in interest before His Honor, John Schley, Judge; also comes the Jury, Eugene Yerderey, Edward Averd, Thomas Wylds, Abner-Read, Andrew G. Bull, George Robertson, George B. Car-hart, George M. Newton, John D. Crane, Robert A. Reid, Isaiah Pense, John J. Cohen, who, upon their oath do say: In this case, the Jury find that there is due to the representatives of Priscilla Jones the following amounts, to-witto; the administrator of Isham Jones Seven Hundred and Twenty Dollars Eifty-two Cents, to John Pond, executor of Milley McGinley, Seven Hundred and Twenty Dollars Eifty-two Cents, and to Eureby Griffin Seven Hundred and Twenty Dollars Eifty-two Cents; and that there is due to James-Beard Two Hundred Ninety-two Dollars, and to Samuel Young the sum of Eleven Hundred and Sixty-eight Dollars, which amounts are to be made *pro rata*from such assets of the defendant’s estate as may be found, by the Master in Chancery, to be in the hands of said administrator, or. may hereafter come to his hands, to be administered in preference to the claims of other persons.

ANDREW G. BULL, Foreman.

The following is the order appointing a receiver:

*529Iss^ivr'AoNESjei.a'i;; Andrew íktffiÉ^Nj 7 administrator, *† %n Eiqiiity.*” 'feos; G;LAS0Ó9k;" déo’fl, *et,aV. J‘ '*- ■’T

JI&ig'RElRD *v's.*Same. *hi Equity.*Sam’dW: Ypüng ■ • ■ l ■ *VS.' ' ■*Same. *In Equity.1*

The defendant, • Ánldréw McLean, -having been, - by the: Cfert' of' Ordinary of Ric-hinorid 'County, removed from the $dmMistration of the' estáte of said Thomas Glascock, sinceth'é rendition'of the verdict in said cases, and no other-person applying for administration; - and it being necessary that soirie'persori-'should'-be appointed to receive and to dispose of-said estate: It is ordered, that William-W. -Hol-t-be, and he’’ iy hereby appointed1, receiver, with full povmr- to sell and disjíó$e'df said estate, or any. part thereof, wheresoever the samerááy'be-p-andás Such receiver, to give and to execute all nee-’' eáriaiy'titles td the1 purchasers,- retaining out of the proceeds-' his travelling-and-'other' expenses, and such commission as" may hereafter be' determined on by the!Court. ■ It is-further ordered,- that said -receiver sell and dispose -of said- property, '• -at-such times, publicly or privately, arid upon such terms* ash^ina^ think best ( and-that he-report at each term of this Court hereafter* his proceedings in tlie-premises. It is fur-; thei- ordered, that' -the acc'ourits of said administrator be re-' ferred to the Master in Equity, and that he report thereon ■ af'thb-hdxV'term of this Court. -

■■'Subsequently, ' John Milledge was appointed instead of" -Judge' Holt. - 1 *!*•'

'It was admitted' that James Morris, in the latter part'of the’year 1845, purchased-and took a -written assignment' from George *W.*Crawford, a *fieri facias,*that issued from the Inferior Court of Richmond County, the same *fi. fa.*referred • to in the bill; and that in the year 1847, he, James Morris,' *530directed the Sheriff of, then Murray County, to levy on the lot of land in dispute and that the Sheriff of the said Murray County sold the land on the first Tuesday in August,, 1847, under said *ft. fa.*and James Morris became the purchaser. It was not pretended that James Morris had actual, notice of the bill filed in Richmond County, or of the decree made in the case when he purchased the execution and bought the land.

Here the cause closed on both sides. Counsel for the defendant requested the Court to charge the Jury — -

1st. That if George *‘W.*Crawford was not personally-served with a copy of the bill and injunction — a copy being-left at his house being insufficient service — he is not bound by the injunction unless he had personal notice of it; and a sale by the Sheriff to Morris, under the execution in Crawford’s favor, is legal and valid.

2d. That if Crawford was served with a copy of the bill and injunction, the doctrine of *Us pendens*does not apply and the sale of the lot of land to Morris by the Sheriff, under the execution in favor of Crawford, is valid, if the lot of land, was not in dispute in the bill in Richmond County.

2d. That if Morris.purchased the lot of land under the execution in favor of Crawford, after a decree rendered in the-bill in Richmond, and without notice of the injunction or decree, his title acquired at Sheriff’s sale, is not affected by the ■ injunction and decree in the case in Richmond; and .if the execution was obtained before filing of the bill, Morris has the • better title.

4th. That if Morris was an innocent purchaser of the land-, at Sheriff’s sale, without actual notice of the suit in Richmond and the decree made, he has a good title to the land.

All of which charges the Court refused to give as requested, but charged the Jury, that in this State, according to law- and practice of the Courts, service of a bill in Equity, by ■ leaving a copy at defendant’s most notorious place of abode, was sufficient service for all purposes, as to him, and that. Crawford was bound by the injunction.

*531That the doctrine of *lis f&ndens*could have no application sto Crawford in this case, he being a party to the bill of injunction, and served with it; and. that *Us pendens*was constructive notice only to strangers to the bill; and that Crawford had actual notice by service on him.

That the bill in Equity in Richmond Superior Court, having enjoined *thefi. fa.*in favor of Crawford against Glascock, under which the premises in dispute were sold to Morris, and ■the bill taking the administration of the estate of Glascock ■ out of the hands' of his administrator, and disposing of the proceeds of said estate according to the equities claimed by the plaintiffs in said bill, it was a violation of said injunction .for Crawford to proceed to sell said land under said *fi.*fa.; and so far as he was concerned, said sale was void and conyeyed no title; and that Morris being the assignee of said *fi. .fa.*was put in the place and stead of Crawford, and subject to the effect of the notice given Crawford by the bill served on him; and if, under these circuí»stances, Morris became .the purchaser of said-land at the Sheriff’s sale, he was no .more an innocent purchaser than Crawford would have been had he been the purchaser. That if, under these circumstances, the sale by the Sheriff of this lot of land was made and Morris became the purchaser, his deed from the Sheriff will be postponed in favor of the deed made under the decree of the Court of Equity of Richmond County.

To which charge as well as refusal to charge, as requested by defendant’s Counsel, Counsel for defendant excepted.

The Jury returned a verdict for the plaintiffs for the premises in dispute, with cost of suit; and Counsel for defendant excepts and says:

First. That the Court erred in refusing to charge the Jury as requested by Counsel for defendant.

Second. That the Court erred in charging the Jury as he did charge them, and as is herein stated.

*532Akin ; Hull, for plaintiff in error.

.Walker; for defendants in error;

*By the Court*

McDonald, J.

J. deliveringthe opinióh'J

■ The refusal Of the Court to charge' the‘Jury as. requested ’by defendant’s Counsel, and the .charge .of the Court tó the 'Jury as given by him; are excepted to by said "Counsel1, ’ and constitute the error# 'alleged against .the decision, of the ÚÍN •cuit Judge; " ,

The first request raises the’, questions,' of the sufficiency, óf "the service of the bill and injunction on the defen.dant? Crawford, his obligation to obey it without personal. notice,, and 'tíre legality and 'validity Of the'sale made by. the' Sheriff to' Morris; under the execution in'favor pf 'Crawford _ against 'Glascoch.'' ' '' " ' _ '

[1.] The hill was served by leaving, á copy “ at .'the Residence of George W.. Crawford.” ‘ The Statute.declares,.Rjmt a copy of the hill shall be served 'on" the '“opposite party,”' but docs not prescribe'the mode'of service.'1 *(Cobb’s New Dig-*467.)' When the defendant resides out "of ihe 'State, bills of injunction may he Served' obhis Attorney'or by. *pub*ication. *(Cobb,*524.) The service'of the bill, as aboriginal bill in Equity, without, an injunction, was unquestionably sufficient. . Was the scrVice of the. injunction such, as to give "it effect and to lay on the defendant an obligation to qbeyjit.? By a strongly controlling weight, of .authority, it was , sufficient; and for the breach of it he might hayo been proceeded against for contempt. It is probable, from what was stated in the argument, that he'might have; purged himself of the contempt, by a sworn denial of personal service or-amótice of the, injunction.. But that- is not the question, here./ Tbd.record shows that the *parties in inter'est*carne befóte the Couirfc. The defendant, Crawford, was a party in interest. That *533ífact,.(that the parties in interest :-camebefore the'- Court,) - is .■stated in the decree of the Court, and-the decree finds in favor of complainants, the amounts due them respectively; and it further finds, that they are to be paid from decedent’s estate, in preference to the claims of other persons.

Whether the defendant, Crawford, had proper notice of the injunction or not, the service was sufficient to give force and effect to the decree-against him. The decree was rendered in 1844. ■ The éxecutíon was assigned to Morris in 1845. Morris stood in no-better position-than Crawford, in regard to the execution, and Ms power to enforce it. *(Cobb,*499; 2 *Kelly's R.*155.)

He,.therefore,, purchased under his .own execution, -with, a decree of the Court of Chancery against him, postponing his judgment and execution to the claims for the satisfaction of which the receiver .-.subsequently sold the land. He could .acquire, no title under-such a purchase.' . .

[2.] The Court very,properly refused to charge the Jury .as.asked' inrthe second -request of defendants Counsel. The decree1 of. .the Court of Chancery of Richmond -County- was against--Crawford, ;and- postponed his execution debt, incommomwith the claims of all- other creditors of Glascock, to the_ -charges against his. estate for, the .satisfaction of .wMch the land in--controversy .was sold under .the decree. The .decree bound the entire estate of deceased, and the title to the'land, sued for.-sVas'turned-over to- Holt, the receiver, by the dismissed administrator, as. part -.of,-the-assets of his estate.-. Although Morris is-:the: purchaser of the. execution, the law places'-him in the position'of. his assignor, and-.he must be considered as purchasing, under his own - enjoined execution; with a.'decree in:.Chancery against him .'.postponing Ms execution . to the. claim .under which the plaintiff in ejectment .purchased-the land. His titlo, under such .a-' sale, is' void. *Roberts vs. Jackson,*(1 *Wend. R.*485.)

The exceptions to the charge, of thé Court to the Jury, and -to the refusal of the Court to give in charge -the. third and .fourth requests, of the defendant’s Counsel,- must be over*534ruled for reasons already assigned. • The judgment of the Court below is therefore affirmed.