Swaggerty v. Neilson

67 Tenn. 32

Opinion

The jurisdiction of a court of equity to set aside the satisfaction of an execution on the grounds of mistake of fact as to the state of defendant’s title to the land levied upon is original and inherent, and is not affected by the act of 1847, ch. —, Code sec. 2990, which prescribes a certain formula by seire facias at law for the same purpose; nor can a failure under the statutory remedy be relied upon as a defense to a bill for that purpose, as res judicata, when the same case is brought by original bill into a court of equity. The statutory remedy is one thing and the equitable remedy is another. The statute, in order to avoid the harsh results of the rule caveat emptor, prescribes-the formula for the speedier remedy at law, and we have held that if this be resorted to, the terms of the statute must be strictly complied with. But when-a bill is filed for a like purpose, the proceeding must be conducted according to the course of a court of equity. If the allegations of the bill be sufficient, the bill will be entertained for issue and proof, and if the case be made out the relief will be granted.

Reverse the decree.