Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-26
Test: ]. F. DEADERIoK, Clerk.
No. 81.


Morgan Dane ct al. vs. Enoch Marshal ct al
An equitable title is subject to tschmeDt,
but to reach it the bill must seek to attach it
as an equity state the nature of the title, and
make the holder of the legal title party.
Code 81, 3, 1884, 5, 500.
An attachment upon land as the property OF
the defendant, will be intended to attach
legal interest and if he has only an equity,
sale under it wiz convey no title.
A purchaser, under decree obtained with
out appearance of the defendant on such a
bill, who fas paid of a vendors lien, viii be
subrogated to the vendors right
A bill will lie by another creditor, in such
case, to declare the sale void, and subject the
equitable title. On such bill the Court will
set aside the satisfaction Of the original
creditors Judgment, and sell the land TO salts
fly /, costs; 2, vendors lien; 8, the complain
ants debt
An equitable estate is not subject to attach
ment at law
In constituting q statute, such meaning will
be given to it as will preserve the distinction
between courts OF law and equity.
From the Chancery Court at cambridge,
Seth ]. W. Lucky, Ch., presiding.
Barton for complainant; insisted that
an equitable estate could only be sold
upon q bill. setting out the title and ma
king the legal owner a party; and cited
Code, $50, 461, $500; Drake on Aft,
SS232, 235, 244, n. l; Peck, r. 300;
Hervey vs.. Champion, II Hum, 500 /;
Graham vs.. McCampbell, Meigs 50,
Green vs.. Demoss, 10 Hum, 81.
OPINION.
This is an original bill, in the nature of
bill of Review. Its object is to review
a decree of the Chancery Court at Dan
bridge, rendered on the 18th of April,
1865, in the case of Enoch and BENZ.
Marshall, against VIM. J. johnson.
The allegations of this bill are, that on
the 9th of February, 1865, Enoch and
Benz. Marshall filed their attachment bill,
against W. ]. johnson who was then
prisoner Of war, at Johnson's Island, ,
setting out an Indebtedness of about $500,
and praying an attachment and sale of
tract of land, described in the pleadiugs,
as the property of said johnson. That
an attachment was levied on the land,
and decree made for its sale. That the
land was sold on credit of six months,
free from the equity of redemption, and
was purchased by said Enoch Marshall,
at $500, which amount was credited on
the debt of Enoch and Benz. Marshall.
1t is further alleged, that at the time of
the levy and sale aforesaid, the legal title
to said land, was in Benz. R. King, and
that w. ]. johnson only held title bond
therefor, q balance of about 5000 being
still due to King, on the purchase money;
that King was not party to the bill of
attachment of Enoch and Benz. Marshall,
and that the attachment bill was filed,
under the belief that the legal title was in
johnson, and that the land was attached
as his property.
The prayer of the bill is, that the sale
of the land under the bill of the Mar
shalls, be declared null andvoid, and that
it be subjected to compliments claim.
Enoch and BENZ. Marshall, in their an
swers, admit most of the allegations in
| the bill, and add, that when they found
out, after the sale of the land, that there
was balance of purchase money due to
King, they paid the same to him, before
the present bill was filed. They make no
response to the allegation that johnson
was a prisoner of war, at Johnson's Isl
and, when they attached the land and
procured decree for its sale. They ad.
NIT, that when they filed their attach
ment bill they did not know that johnson
owed any part of the purchase money,
nor did they know that he had no legal
| title.
From the allegations of the bill and the
admissions of the answers, it is apparent,
that when the attachment of Eaoch and
| Benz. Marshall was levied on the land OF
johnson, he had only an equitqble title,
the legal title then being in King. But il
was the legal and not the equitable titlt
which was attached and sold, and pur.
chased by Marshall. 1t follows that he
obtained no legal title by his purchase,
and unless the attachment fixed lien on
Johnson's equitable interest in the land
no title whatever was acquired by the
purchase.
1t is well settled, that whatever right OF
interest in property of debtor, whether
of legal or equitable nature, would be
affected by the lien of a Judgment o.
execution, will in like manner be affected
and made subject by the lien of an attach
ment. Harvey VS.. Champion, II Hum
| 500.
1t is equally well settled, ever since th,
case of Shute vs.. Harder, l Yerg. 8. tina
the lien of judgment or execution
operates only on the legal title of lands
] except IN the eases provided for in session