Walker v. Hunt

2 W. Va. 491 | W. Va. | 1868

Maxwell, J.

There are but two questions arising upon the'record of this case. The first is a question of jurisdiction, the appellant maintaining that a court of equity has jurisdiction to enjoin the sale of the property levied on while the defendant denies it. The second is a question of fact in which the appellee maintains that the transaction is fraudulent, and that although it be decided that the court might take jurisdiction upon the facts charged in the bill, yet upon the facts proved the injunction was properly dissolved.

On the first question the appellee maintains that there was a complete remedy at law, and that therefore a court of equity cannot give relief. It is claimed that sections 4, 5, 6 and 7 of chapter 152, Code of Virginia, page 655, give such complete remedy at law. The indemnifying bond here referred to was'not given and returned to the clerk’s office in this case. If the bond had been given what would be its effect? Nothing further) I imagine, than to relieve the sheriff from liability, provided the security in such bond had been good at the time of taking it. If the bond had been given the appellant might have sued on it for any cause for which he might have sued the sheriff if it had not been given. And, moreover, he might sue any purchaser of any of his property at sheriff’s sale for any cause for which he might have sued if the bond were not given. It is claimed that since the statute giving the indemnifying bond, the case of Bowyers, &c., vs. Creigh, &c., 3 Rand., 25, and the case of Allen vs. Freeland, Ibid, 170, establish the doctrine that a court of equity will not in any case enjoin the sale of personal property under an execution. I cannot understand these cases in that way. .1 understand them to establish the doctrine that.in no case where the plaintiff claims as an in-cumbrancer merely will a court of equity interpose, but when he claims as owner it will interpose in all cases where from the nature of the case the remedy at law is incomplete. In the subsequent cases of Randolph vs. Randolph, 6 Rand., 194; Sims vs. Harrison, 4 Leigh, 346; Kelly vs. Scott, 5 Gratt., 479, and Summers, and others, vs. Bean, 13 Gratt., 417, the doctrine is fully established and acted upon that slaves ought prima facie to be considered as of peculiar value to their owners, and not properly a subject for adequate compensation in damages as land is considered to be to a purchaser; and in the cases of Randolph vs. Randolph, Sims vs. Harrison, and Kelly vs. Scott, the sale of slaves under executions was enjoined. These cases are all consistent with one another, and with the theory of equity relief, and clearly determine the question that the statute referred to does not take from the party his right to go into a court of equity for relief, where there is no adequate remedy at law. The case of Watson vs. Sutherland, 5 Wallace, 74, in which an injunction was held to be the proper remedy, is consistent with the principles of these cases and jn its facts has a striking similarity to the case under consideration. It may not be out of place to remark in connection with this case of Watson vs. Sutherland that the equity jurisdiction of the courts of the United States is independent of the local law of any State, and is the same in nature and extent as the equity jurisdiction in England from which it is derived, and is, therefore, the same as the equity jurisdiction of the courts of this State. Dodge vs. Woolsey, 18 Howard, 347; Green’s administratrix vs. Crighton, et al., 23 Howard, 105; Livingston vs. Story, 9 Peters, 632.

It seems to me clear that the appellant in the case under consideration has no other complete remedy than that which he has sought to pursue. As the order dissolving the injunction was made on motion before the cause was ready for final hearing, I do not consider it proper to express any opinion on the facts of the case, but am of opinion that the order dissolving the injunction was erroneous and ought to be reversed, with costs to the appellant, the injunction reinstated, and the cause remanded to the circuit court of Kan-awha county to be further proceeded with therein. Gray vs. Overstreet, &c., 7 Gratt., 346.

The President concurred.

DECREE REVERSED.