The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-09-07

William W. Cook ct al vs.. Buckner H. Toumb-
Inns hiii was MED by the appellee. showing that he
: NE heir at Ia" 81 James Toumhs, who died in pril
1850 seized Of certain described lands which descend
ed TO the appellee and his brother who /. since de-
ceased-that in October, 1855 and when appellee vas
an infant about eighteen years Of age, he executed
deed OF conveyance for a certain described part ~
said lands TO the appellant Cook which was obtained
by SAID Cook by persuasion and coutriyance and with
ont any valuable consideration whatever the sum
oi one hundred dollars expressed iu.tbe deed as the
consideration beng entirely nominal--that before
the death Of James Toumbs Judgment M lau ,,as
rendered against Inn in favor of one Wheeler fr ~
sum 81 2lu' 10 and costs Of suit on which an evarn
made by the sale Of personal proucrty az ~, A.
ceased and in November. 1858. after his death on
"lhtf execution was issued, tested of June term ls55
under which the same lands were levied IrI,, ii
old ~ the sheriff on the Sd December 1855 10 said
Took Tor the sum Of $40 who received a deed from
ne sherh Tor the SaIne-that James Chapman claims
title to the lands through purchase from Cook-tbat
James loumbs died ntestate. and that the Judgment
against hn not revived by srire furoS2that ~
land was sold at the sherffs sale Tar below it, actual
Nh9ei beng worth At the time of sale $ljOO-prayeT
that the deed from the appellees and also The sfer
fl s sale and deed lie set aside.
The appellants demuFred to the hill on variou.
/ grounds, and the demurrer being overrl,J.J ,be,
/ thereupon took this appeal.
| lhe hrst ground OF demurrer here insisted on is
that the remedy was PLAIN and ample at to recove
the lahd. But tins position Is not tenabe under tn,
[ circumstance of the case
The allegations Of the bill show case Of frand il
obtaining the deed oil the appellee without legal con
-lderatlon, that the deed il outstanding, and tha
Cook has conveyed the land to a third marty III,
Object OF the bill Is 10 yacate and cancel the deed no
merely to recover this land: and this II il Main
court of law i incompetent to do In addition Ia hi.
ltappears that Chapman claims title under purchas
rom Cuuk and there u no form Of action II law b.
which both OF those parties could be sued in one NJ
ton and their interests Invested. Their Interests an
connected together, and 1t is proper both to them
ana ioT the Itiel sought by the appellee, that the
should he proceeded against jointly, and court q
/ equity Is plainly the proper forum in which to pro
coed.
I'd. It j. objected that the bill does not offer To re
store the sum Of one hundred dollars the Considers
'oh stated IN the deed to have been paid By Cook
| the appellee.
The iiI, however. alleges that neither tins sn,o No
any other consideration was paid by the appellan
Cook orrecelyed by the appellee and that the stat,
ment Of the consideration in the deed IL not trIe
10 TINS 1t Is objected that the appellee Waa esoppe
~ the recital IN his deed The objection Is Withou
idrce. Inc party being u lHIant the deed had n
tDrce OF effect against ElH unless ratified after affair
ng 10 majority: ana he was no more estopped h
tIo consideration stated IN II, than by ANYTHING eli
.onnected with it. Moreover the ALLEGATION ~ fr,r,
would obvate the suggestion Of estoppel.
3D. Il u insisted that a court Of equity las n iur,
dlcon To set aside sheriff sale and deed under a
execution against deceased defendant, testsd an
ISSUED after ms death and where tho Judgment Ia
not been revived by scrg fd,sas
II appears 10y the E'ts stated In the bin that Cook
ohaTgeahe WltR notice, that the defendant IN the e,
efutdA Was dead and that the Judgment had not bee
revived He must have had notice oi tbs lnrmp
iact Tor ne had previously 10 this shIiti sale taka
the deed from the appcllaa a. owner of tho l9r
Nlrt Ia could scarcely have dane unless his fatla
was ded-Ahd 10 was bound TO take notice of the IL
ter Fact because the execution which he rI,rnssa
showed IL. Though stranger to TIE eyaan,,d'o 4
was yet purchaser. with notice in law ~ Tho ire,
army q NE execution and Of course he is not ent
leu !" pIoIecuoh As PURCHASER under a valid an
regular execution put, 1t is said that the sale m
tted OF me sheTfH can only be set aside by the cam
from which the execution issued
II t4s been repeatedly held Ily this Cont Tho, an,
it may re set as'ae by direct Proceeding institr
ga ~ the heil for that purpose, smith q MI +
W lnston ct al How. col. shelton v Hamilton .
Mss $50. Hodge ". Mitchell q H. 5G0l THIS rigI
al course can be exercised 10y the infant heir onaT
Ieaehc, ms majority. But at that time the inrish
| non ul the court from which the execution issne
might nave tfanspIr and the exercise of II migF
'e doubtful fur that reason or Nv reason Of the ii
fguoA. 70 Tue validity Of the sale. being Of an euui
,the nature Which might justify court of law IN =,
ul2 aside the sale, But these difficulties 10 NOT \
"a proceeding instituted in a court OF equity for :,
i'h' sets forth the lTregulsdlty of the execution
~ own minority and prays that for the reasons 81;
tei lhs sac De set aside. No objection can be Del
el'tu 20 inns mode OF proceeding Ia equity again.
the purchaser who has pure based the Land n sheriff
sue WIN notice ~ she fregHarity of the execution
agpn-t the lIh1s OF the infant: and this ,,round ,
| tttat'Eref - not lHaIRtanahle.
me last ground Of demurrer is that in order to Sc
so u5 Shrlu sale ana deed. the bill should hav
ItAdeTtd totpuk the amount paid by him in diScharf
n The Judgment which was 4 lien on the land IT
| payment being discharge Of a claim for which IN
appellee. '0''" =" VI
l. Is true, that if Cook was purchaser in good fat
atme execution sale. and paid the money IN discharg
| "l me Judgment he would Ia entitled to reimburse
nent before the relief aht the in bill would be gram
Cd But thlS - rather matter Of defence than part
the cplAIlapnts case, and would be entirely COR
ettht Tor the court under the bll as now framed I
decree That tue deed of the sheriff to Cook be :,
aside aud be delivered up to be cancelled uuoD III
HPpe.iIa4lt paying 70 nun the sum Of money paid b
ann IN discharge Of the Judgment. Sach a course
not inconsistent with the scoua and PRAYER of Ia
hill and the court in granting the relief sought is con
petent 70 do so upon sGch equitable terms as may h
shown to be lust and proper. -
Let the decree be affirmed and the cause remande,
WIN direction that the appellants answer within sixt