Edgell v. Clarke

76 Miss. 66

• Court: Mississippi Supreme Court
• Decided: March 15, 1898
• Status: Published

Opinion

Terral, J.,

delivered the opinion of the court.

E. M. Clarke brought suit by attachment to the March term, 1897, of the circuit court of Coahoma-county, against George S. Edgell, surviving partner of the Corbin Banking Company, for $10,000. The writ of attachment was levied upon certain lands in Coahoma and Bolivar counties, whereupon said Edgell, with George A. Hammel, who is alleged to be vested with the legal title to the lands levied on by the attachment writ, and the widow and heirs of Austin Corbin, the deceased member of said Corbin Banking Company, enjoined said suit at law and seek to litigate the matter in controversy in the chancery' court of said Coahoma county. The bill alleges that the legal title to the lands levied on is in George A. Hammel, in trust, to sell the same, and out of the proceeds first to pay the American Freehold Land Mortgage Company, Limited, which is also made a party defendant to the bill of complaint, certain sums of money due it, and then to pay the surplus to the Corbin Banking Company, and the injunction is laid on the ground that the levy of the attachment casts a cloud upon the title of complainants, or will do so should said suit be prosecuted to judgment and said lands should be sold under a venditioni ex-ponas issued thereon. The chancery court dissolved the injunction and hence this appeal.

We think the decree of the chancery court should be approved. That the court of chancery may remove clouds from title, and, as incident to such power, may prevent the formation of clouds upon title, is a recognized ground of equity' jurisdiction; but the court should not interfere, especially by way of enjoining an action at law, until there is imminent danger of a cloud being cast upon the title by' some impending wrongful result of said action.

It may be the case will not proceed to judgment, or, if it does, that the judgment may be paid, and, at any rate, it will be time enough to enjoin the sale after the judgment is rendered and a sale inevitable, should it appear that the sale would cast a cloud upon the complainant’s title. Sanders v. Village of Yonkers, 63 N. Y., 492; 3 Pom. Eq., sec. 1398, note 4; Irwin v. Lewis, 50 Miss., 363.

The decree of the chancery court is affirmed.