Wilson v. Dale

5 Ind. 163

• Court: Indiana Supreme Court
• Decided: May 31, 1854
• Status: Published

Opinion

Per Curiam.

Dale filed his bill in chancery in the Delaware Circuit Court, setting forth that in 1846 he obtained a judgment before a justice of the peace of Wayne county, for a fraction over 20 dollars, against Jeremiah A. Wilson and one Ithamar W. Huff; that he procured an execution to be issued on said judgment, which was returned linulla bona;” that since that time said Wilson had become a citizen of Delaware county, and had obtained therein of one Thompson an equitable interest in certain real estate particularly described. Wilson and Thompson are made defendants. Huff is not. A decree was prayed and granted for the sale of said equitable interest.

Neither the decree nor the bill in this case can be sustained. There is nothing showing a necessity of resorting to chancery for the collection of the debt in question. A return of milla bona upon an execution issued by a justice of the peace, is no evidence that the defendant has not real estate subject to execution, and the bill does not allege that he has not. Besides, the judgment of the justice was against two. But one of those defendants is made a defendant to this bill, and there is no allegation that the other has not real estate.

W March, for the plaintiff. T. J. Sample and D. Kilgore, for the defendant.

The sections of the R. S. 1843, on page 456, authorizing the sale of an equitable interest in real estate, on a decree in chancery, after an unavailing execution at law, relate to an execution from the Circuit Court.

The decree is reversed with costs. Cause remanded, &c.