101 Tenn. 433 | Tenn. | 1898
On the 28th of July, 1896, Andes conveyed the real estate in controversy to Manard,
The contention was and is that, by filing the bill and bringing Manard before the Court, the complainants put the land in the custody of the law, and acquired a lien on it, and Manard thereafter, and pending the suit, could not make a valid sale.
This contention was not well taken. If the bill
It is also true that a creditor who has execution and nulla bona return acquires a lien upon the defendant’s equity in real estate by the filing of his bill, and in this case the complainants, if proof had been made of judgment and return of nulla bona, might have impounded the surplus. But in this case there is no surplus, if the sale is allowed to stand, so that the question whether Manard could proceed to execute his trust out of Court under the provisions of his trust deed, instead of under the orders of the Court, is the question at issue. This exact question is involved in the case of Porter v. Duke, 15 Pickle, 24, where it was held that a judgment creditor who seeks to foreclose a mortgage and subject the surplus without impounding the property, or obtaining receiver or injunction, cannot have relief upon a mere showing that the property was sold pending the litigation, at private sale, as authorized by the deed of trust, when no surplus is realized and it is not shown that the sale is fraudulent or that the property was sacrificed or did not bring full value.
This case does not in any wise conflict with the cases of Fulghum v. Cotton, 6 Lea, 590, and Schults
The Court holds, therefore, that there is no error in the decree of the Court of Chancery Appeals, and it is affirmed.