McFarland v. Dilly

Maxwell, J. The appellants claim that the circuit court erred in dissolving the injunction and dismissing the bill, because of the collusion and fraud between Dilly and Everett as to the confession of judgment and the levy of the execution on the property purchased by the complainants. The appellees insist that the injunction was properly dissolved, although there may have been collusion and fraud between them, for-the reason that a court of chancery has no jurisdiction to enjoin the sale of personal property. As the complainants claim as owners, and charge fraud in their bill, and are without complete remedy at law, upon the case made in their bill, a court of equity has jurisdiction to enjoin the sale of.the property. Walker vs. Hunt, 2 W. Va., 491, The answers, however, deny fraud and collusion, and [137] there is no proof going to show either as to Dilly the judgment creditor. It was claimed in argument for the appellants, that the purchase of the property in question was complete on the 20th of August, 1867, and before the judgment was confessed, and there is some evidence in the record tending to show that such may have been the case, but the charge in the bill is that the purchase was made on the 3d day of September, ' 1867, two days after the judgment was confessed and execution issued upon it, and the parties cannot be allowed to depart in their proofs from the allegations of their bill. 2 Daniels Ch. PL and Prac., 992; Story’s Eq. PL, § 257. There is no sufficient error to reverse the decree complained of, and it will have to be affirmed with damages and costs to •the appellees. The other judges concurred. DECREE AFFIRMED.