Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-04

December Term - Nashville
1870.
Joseph ID. HefskelI, Attorney-Gen.
i eral and Reporter.
.. W. west vs.. D. weaver and others.

J, w. West vs.. d. Weaver and others.
@ OPINION.
= A motion Is made to dismiss the appeal
In this case because it was prematurely
granted by the Chancellor. The appeal
was prayed by complainant and granted
after decree ordering sale of his lands,
under the assumption that the principles
involved in the cause were determined by
the decree, from which the appeal was
taken; or, that the decree settles COM
plainant's right, although the case may
not be disposed of as to others. Code,
s31, 81.
The bill was filed in August, 1866, to
enjoin the sale of large and valuable es-
tate under various executions from courts
of law and equity, alleging that there
was conflict of liens among the numer-
GUS creditors of complainant, and that
sale thus made would result in great loss
and sacrifice, owing to the uncertainty
and confusion as to titles, in consequence
of the conflicting liens that the result
would be that a few creditors would alb
sorb the estate at ruinous prices, leaving
others equally meritorious unprovided for.
He alleges large amounts of usury are en-
braced In the claims of some of his credi-
tors, against which he desires relief. He
calls upon his creditors to come forward
and interplesd to have the amount of
their claims justly due ascertained, and
that their conflicting liens may be mar
shaled and their several priorities ascer-
tanned, and then he prays for the sale of
the lands for the satisfaction of his credi-
tors according to their respective priorities.
The cause progressed 30 far as to have
ali the matters of allegation inquired into
and reported upon by the Master pre-
liminary to decree settling the amounts
of the several claims and their respective
priorities of satisfaction, when the caus =
came on for hearing in October, 1859.
The decree recites that the Master has
filed his report showing the sums due the
several creditors, and proceeds: "And it
appearing from the bill fled, and from the
records In other causes in this court, that
all the aforesaid debts are liens on the
property of complainant some by mort
cages, which have been decreed to be
foreclosed, others by DEGREES of this court,
others by judgments at law and others by
bills filed to enforce the liens of judgments
on equitable estate, the court without
now undertaking to settle the order in
which said judgments and DEGREES shall
be paid, doth decree that the said real
estate shall be sold to pay the said credi-
tors, etc., the said complainant here in
open court relinquishing all right in him
self or creditors TO redeem, and upon the
confirmation of the report the sale by
agreement shall be absolute" The de-
cree closes thus: s'The complainant may
take proof and show payments made to
any of the creditors and not set out in
said report; and John and Charles Miner,
and Kate Stacker, having filed bills in the
cause during the term, the defendants
have until the January rules to answer
30 as not to delay the hearing"
From this decree complainant appealed
on the 9th of November, 1859.
1t cannot be said that the Chancellor
settled the principles involved in the
cause as preliminary to sale of the
lands. The bill was filed to have ques-
tons of conflicting liens and as to alleged
usury settled. There was no principle
involved in the sale of the land. No
questions as to compliments title to the
land were involved. The principles to be
settled in the cause related TO conflicting
liens among creditors, which detracted
from the Suitability of the lands. The
complainant prayed for the sale of the
lands for the satisfaction of his debts.
But we see on the face of the decree that
none of these questions of embarrass-
ment, involving principles of law as to
the priority of liens, were settled, but
were expressly reserved. But the primary
object of complainant, in fling his bill,
was to have these questions settled be-
fore sale of his lands should take place.
The equity on which he claimed status in
a Court of Chancery rested on his right
to require his creditors to interplead and
settle their conflicting priorities of liens,
to avoid sacrifice of his property. The
Chancellor had recognized his right to the
relief he prayed for by overruling the
several demurrers. But in the decree I'M
der consideratit n he reverses his former
holding and by decreeing sale of the
lands, and reserving the questions as to
the conflicting liens, he settled the cause
against cOmplai. ant By the express
language of the statute it was competent
for him to slow an appeal from this de-
olson.
We therefore hold that the motion to
dismiss the appeal must be disallowed.
But we think it proper case for the
appointment of receiver and that mo-
ton we sustain.
NICHOLSON, Judge.
A true copy attest:
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