Osburn v. Andre

Citations

• 58 Miss. 609

Syllabus

<p>Injunction. Deed of trust. Marshalling assets. Case in judgment.</p> <p>At a sale under a judgment against M., a tract of land was purchased by 0., which was encumbered with a deed of trust previously executed by M. in favor of A. The trustee was about to sell under the deed, when O. filed a bill in chancery charging that there was much less due upon the claim secured than the ostensible amount thereof, and seeking a discovery from A. as to the amount really due, and also praying that an account of the indebtedness be stated by a commissioner. The bill further stated that the deed of trust covered a lot of personal property, and prayed that it should be first sold and applied to the payment of the debt. There was a prayer for an injunction, and, accordingly, a.temporary injunction against the sale of both the personalty and realty was granted. A. answered, admitting the above stated allegations of the bill, and making a statement of the amount due on his claim. He thereupon made a motion to dissolve the injunction; which was granted as to the personalty, but overruled as to the realty. Prom this order of partial dissolution O. appealed, and gave a bond for supersedeas. A. then renewed his motion for a dissolution of the injunction as to the land, and it was sustained. Prom this order O. also appealed, and the two appeals were presented to this court to be considered together. Held, that the action of the chancellor was correct in both instances.</p>