This is a suit by William Parsons to restrain the defendants from selling exempt personal property upon execution. The plaintiff, in substance, alleges that the defendant George A. Hartman, having obtained a judgment against him in the circuit court of Umatilla county, Or., caused an execution to be issued thereon, and delivered to the defendant William J. Furnish, the sheriff of said county, who, in pursuance of the direction of his codefendant, levied upon necessary wearing apparel of the plaintiff and his family, and upon the household goods, furniture, utensils, books, library, tools, implements, and apparatus necessary to enable him to carry on his profession of an attorney at law, by which he earns a living; that at the time of said levy he was a householder of said county, and as such selected, and reserved as exempt from execution and sale under said writ, all said

sheriff a schedule thereof, with the reasonable value of each article set opposite thereto, amounting in the aggregate to $550.30, but that said sheriff, acting under the direction of his codefendant, advertised and was threatening to sell all of said property, to his irreparable injury; that he had no plain, complete, or adequate remedy at law for the injury threatened, and prays an injunction restraining said sale. The defendants demurred to the complaint, alleging that it did not state facts sufficient to constitute a cause of suit, and that the court had no jurisdiction of the subject-matter thereof; and, the demurrer having been overruled, they refused to further plead, whereupon the court, by decree, made the temporary injunction which had been granted perpetual, and awarded the plaintiff his costs and disbursements, from which decree the defendants appeal. Their counsel contend that the plaintif has a plain, speedy, and adequate remedy at law, and that equity will not entertain jurisdiction to enjoin the sale upon execution of personal property that isexempt therefrom. There is a conflict of authority upon the right of a judgment debtor to enjoin the sale of his personal property under execution upon the ground that it is exempt by law from sale under judicial process. It has been

I. Exempt personal property.

The case of PARSONS V. HARTMAN denies the right to obtain an injunction against an execution sale of exempt personal property. There is some conflict of authorities on this question, but where there is a special statutory remedy, that is quick, adequate, and affords the same relief as would be obtained by injunction, as in PARSONS v. HARTMAN, the rule adopted in that case is supported by some authorities. But where the objection to the injunction is, that there is a remedy by replevin, trover, damages, or the like, the weight of authority is in favor of granting the injunction.

So, relief against an execution sale of exempt personal property will be denied in equity where, under Ark. Mansf. Dig. § 2988, a stay of proceedings could be maintained until the debtor's claim of exemption could be determined. In this case the debtor did not file his schedule and claim of exemption with the officer under Ark. Mansf. Dig. § 3006, as he did not know of the levy in time, and the court holds that the statutory mode of making the claim of exemption excludes all others. Driggs' Bank v. Norwood, 49 Ark. 136.

And in Baxter v. Baxter, 77 N. C. 118, an injunction was refused against a sale under execution of personal property where possession had not been disturbed, on the ground that the title to personal property claimed to be exempt will not be tried by injunction, but if it should be seized, the remedy is an action to try title at law under N. C. C. P. § 177, subsec. 4, allowing complainant's right to continue in possession, and try title. But see next case, infra.

But in Gaster v. Hardie, 75 N. C. 460, where it seems the same section of the Code was in effect but not referred to, it was held that a debtor owning chattels that are mortgaged is entitled to the exemption in the same, as against a subsequent judgment creditor claiming that the mortgages are fraudulent, and may enjoin the execution sale, as the rights of the parties cannot be ascertained and

one only of the other parties, or by a levy and sale of the property as belonging to one only of two adverse claimants; and this suit prevents a multiplicity of suits; and an injunction was granted. This case is not referred to in Baxter v. Baxter, supra.

In Stout v. McNeill, 98 N. C. 1, where it was held that an injunction will not be granted to restrain a sale of personal property, out of firm assets, under a judgment against the firm, claimed as exempt by one member, where the other member had consented to his claiming such exemption but revoked the consent before the sale, the question as to the right of injunction in case the property was exempt was not discussed, or other cases referred to on that question.

But in Nebraska it is held that a levy on exempt personal property may be enjoined, notwithstanding a remedy by mandamus to compel the officer to appraise and release the property. Cunningham v. Conway, 25 Neb. 615.

The weight of authority is in favor of granting an injunction to prevent the sale of exempt personal property, notwithstanding a remedy of replevin, trespass, or trover. Stein v. Frieberg, 64 Tex. 271; Alexander v. Holt, 59 Tex. 205; Nichols v. Claiborne, 39 Tex. 363; Anderson v. Larremore, 1 Tex. App. Civ. Cas. (White & W.) 947; Dearborn v. Phillips, 21 Tex. 449; Hammer v. Woods, 6 Tex. Civ. App. 179; Naill v. Kansas Farmers' F. Ins. Co. 47 Kan. 223.

An execution sale of property exempted, to a farmer, will be enjoined, and the fact that he stopped farming will not authorize a dissolution, as the seizure may have prevented him from carrying on farming occupation. Ray v. Hayes, 28 La. Ann. 641.

And an injunction will be granted against a sale of growing crops raised on a homestead. Coates v. Caldwell, infra.

But in Bryan v. Long, 14 Fla. 366, it was held that an injunction will not be granted to restrain an execution sale of exempt personal property where there is a remedy at law by replevin against the officer. In this case the levy was for a debt, on a

complete remedy at law for its unlawful seizure or detention, equity will not entertain jurisdiction at his suit to recover possession of it, except where it has a certain, special, extraordinary, and unique value, impossible to be compensated for by damages. 1 Pom. Eq. Jur. § 177. And if it appeared from the complaint, in the case at bar, that any article of personal property levied upon by the defendants possessed a special value to the plaintiff alone, such as a keepsake or memento of any kind, the loss of which could not be compensated in damages, equity would interfere to prevent its sale. Where an unlawful and oppressive seizure of exempt property has been made upon execution, the claimant, under ordinary circumstances, may safely risk his cause to the keen sense of justice inherent in mankind, and feel assured that a jury will, by its verdict, award him damages for the injury sustained.

The plaintiff having, under the statute, a complete remedy at law for his injury, and nothing appearing in the record to entitle him to invoke the interposition of a court of equity, the decree of the court below is reversed, the demurrer sustained, and the complaint dismissed.

And an execution sale of a house on leased land owned and occupied as a homestead confers no title, and the purchaser will be enjoined where he is in possession and threatens to remove the house. Conklin v. Foster, 57 Ill. 104.

And an execution sale of a homestead would be enjoined as a cloud upon the title where a necessity might exist of the introduction, in an action of ejectment, of extrinsic evidence to show that the property was a homstead. Roth v. Insley, 86 Cal. 134. And an injunction was granted to remove a cloud on title, of a homestead as against a judgment, but the court refused to make the injunction perpetual, on the ground that the property might increase in value, or might be abandoned, and granted the injunction on the ground that extrinsic evidence was necessary to protect the title, reserving, however, to the creditor the right to move to bave the same vacated on showing cause. Corey v. Schuster, 44 Neb. 269.

A levy of an execution upon growing crops upon a homestead will be enjoined. Coates v. Caldwell, 71 Tex. 19.

A restraining order against the levy and sale under execution on a dormant judgment, of a homestead, may properly be made, notwithstanding the remedy of applying to the court to recall the execution, Krinke v. Parish, 9 Ohio C. C. 141, 2 Ohio Dec. 85.

And the defendant is entitled to an injunction to restrain the collection of a judgment out of property bought with pension money, as it would create a cloud on his title; and the remedy to move to set aside the levy will not prevent an injunction, as he was entitled to have the case tried on common-law evidence, and not on ex parte affidavits. Buffum v. Forster, 77 Hun, 27.

The act of Congress, June 1, 1872 (U. S. Rev. Stat. $916), providing for similar remedies upon a judgment by execution or otherwise as are now provided in like causes by the laws of the state in which such court is held, having been passed subsequent to the homestead exemption statute of Wisconsin, that statute applies to judgments in favor of the United States, and an execution sale

S. 272, 27 L. ed. 196.

So, an injunction will be granted restraining the sale on execution of a homestead claimed under the laws of the United States, if the judgment on which the execution issued was recovered for a debt contracted before the homestead claim was patented. Miller v. Little, 47 Cal. 348.

And a sale under execution of land exempt as a homestead will be enjoined where the land levied upon had been conveyed by deed as security for the debt; but it is questionable whether or not the deed was not void on account of usury. Johnson v. Griffin Bkg. & T. Co. 55 Ga. 691.

An injunction will be granted after an execution sale of the homestead to prevent the purchaser from conveying such land, where the requirements of the statute as to setting off the homestead have not been complied with, and the sale is for a grossly inadequate price. Bullen v. Dawson, 139 Ill. 633.

And a homestead acquired after a judgment will be protected by injunction against execution sale, where possession could not be obtained by the owners for some months after purchase and after the judgment, owing to a lease on the premises, and such homestead was bought with the proceeds of a former homestead. Gardner v. Douglass, 64 Tex. 76. See Mann v. Wallis, infra.

And the homestead right may be claimed by a wife, or widow, where an injunction is sought to protect her rights against a forced sale.

So, an injunction will be granted in favor of the wife to restrain the sale of the homestead. Eaton v. Eaton, 68 Mich. 158; Nichols v. Snow, 42 Tex. 72.

And a widow, with children depending upon her for support, may obtain an injunction against a sale of a saw and grist mill, as the same are fixtures and attached to the land which was exempt. Tison v. Taniehill, 28 La. Ann. 793.

And a writ of possession on a judgment against a husband to which the wife was not a party, and in which the homestead was not in issue, may be enjoined to protect the homestead right. Freeman v. Hamblin, 1 Tex. Civ. App. 157.

The purchaser of a homestead is generally entitled to an injunction against the sale of the same, on execution against the grantor, where he is a

A purchaser of land exempt as a homestead is entitled to an injunction against a sale on execution on a judgment existing at the time of purchase against his grantor, as preventing a cloud on his title, and a homestead exemption attaches without any assignment where that is all the land the debtor has. Ketchin v. McCarley, 26 S. C. 1.

And an injunction will be granted, although the judgment was rendered against his grantor before he purchased the land. Smith v. Zimmerman, 85 Wis. 542.

And will be granted in favor of a purchaser of homestead property, to prevent a cloud upon his title. Van Rateliff v. Call, 72 Tex. 491. See Mann v. Wallis, infra.

And an injunction will be granted under Wis. Taylor's Stat. chap. 134, § 30, providing that the owner of the homestead may sell the same, and that such sale will not render it liable to execution. Goodell v. Blumer, 41 Wis. 436.

And the same was held where the purchaser was also the equitable owner of the lien of a judgment attacked. Goodell v. Blumer, 41 Wis. 436.

But in Mann v. Wallis, 75 Tex. 611, a purchaser of a homestead was refused an injunction to prevent a sale under execution on a judgment against a prior owner, where the bill of complaint showed that the execution was not a lien on the land, or a cloud on the title; and the remedy of trespass to try title was adequate. It was said that if his claim of relief had been made on the ground that evidence outside of the record would be needed to protect his title, an injunction would be granted: as, in Van Rateliff v. Call, supra, the question was whether the abstract of judgment was properly recorded in the county before the debtor sold the land, and whether there was a homestead at the time of filing the abstract, so in Gardner v. Douglass, supra; extraneous evidence would be necessary to establish the homestead right.

And in Mellier v. Bartlett, 89 Mo. 124, it was held that under Mo. Rev. Stat. § 2405, giving the execution debtor a right to apply to the judge of the court out of which the execution issued, to stay, set aside, or quash the same, that the judge of a court of another county could not quash the levy on a homestead in that county.

A personal representative of an estate is entitled to an injunction against a judgment setting off a homestead to the debtor as fraudulent, where there was no representative to contest the allowance of homestead at the time it was made, and it is attacked on the ground of fraud. Brown v. Thornton, 47 Ga. 474.

But an injunction against an execution sale of land claimed as a homestead will not be granted where the homestead right has been lost, or has not been acquired, or has been adjudicated, or the bill does not make out a cause of action.

Where an exchange of land is made, the exemption of the debtor in the tract conveyed by him does not continue after exchange, where he claims an exemption in the other tract, and the same may be levied upon for his debt, as the homestead is a mere right of occupancy, in Arkansas. Moore v. Granger, 20 Ark. 574.

vested; but while the mortgage was held void, it was but an incident to the debt, and the debt was held good and the property liable, and the injunction was refused. Revalk v. Kræmer, 8 Cal. 66, 68 Am. Dec. 304.

And 2 Ind. Rev. Stat. 1876, p. 507, providing that if the personal estate of the decedent is insufficient to make the sum of $500 for the widow the deficit shall be a lien on the real estate, will not authorize an injunction against an execution sale, on a judgment prior to the death of her husband, as her lien did not attach until his death, and the creditors are entitled to sell two thirds of the estate. Mead v. McFadden, 68 Ind. 340.

The owner of an undivided part of land cannot enjoin a sale, as exemption does not apply to an undivided tract. Henderson v. Hoy, 26 La. Ann. 156; Brown v. Sollibellos, 28 La. Ann. 355.

And a sale of homestead property under a decree will not be enjoined where the matter of homestead has been fully adjudicated in the decree, and no new matters for equitable interference are set up in the bill. Brinson v. Wessolowsky, 58 Ga. 293.

So, where two unsuccessful attempts to claim a homestead are made, and the last one is passed upon by the court, an injunction will not be granted against an execution sale, where the sheriff refuses to recognize a third attempt that complies with the statute, as laches of complainant and res judicata prevent an injunction. Platt v. Sheffield, 63 Ga. 627. A purchaser seeking to enjoin a sale of the laud exempt as the homestead of his grantor, alleging the judgment lien, the conveyance to him, and the relinquishment of the homestead; but not showing that the relinquishment of the homestead was at the same time as the conveyance,-is not entitled to an injunction; for, if the relinquishment of the homestead took effect before the conveyance, the lien of the judgment attached. Marriner v. Smith, 27 Cal. 649.

And although a purchaser of a homestead would be entitled to have a sale on execution against his grantor enjoined as a cloud upon his title, the bill must allege that the value of the premises did not exceed the amount allowed under the homestead law. Ibid.

And an injunction against the sale of a homestead under an execution is not authorized where the bill does not state that an execution is in the hands of the sheriff, nor does it refer to the judgment. Adams v. White, 23 Fla, 352.

A decree enjoining the collection of a judgment, and to refrain from all proceedings on the same, is erroneous, on a bill for an injunction to prevent a sale of complainant's property exempt under the appraisement law. Anthony v. Shannen, 8 Ark. 52.

In Moriarty v. Galt, 125 Ill. 417, solicitors' fees were not allowed on dissolution of an injunction against a sale of property claimed to be homestead, on an execution against the purchaser's grantor.

III. What kind of property first liable. The remedy by injunction to prevent an execution sale of one kind of property until another kind shall be first sold, has generally been denied, where the debtor does not point out to the officer, or deliver to him, property liable to sale; but a case in Rhode Island granted an injunction where property of a school district was seized.

An injunction will not be granted against the execution sale of real estate on the ground that complainant had personal property liable to execution, where he does not disclose the same or point it out to the sheriff. Smith v. Frederick, 32 Tex.

And a sale of land under a judgment which is a lien upon that land will not be enjoined on the ground that personal property has been taken on execution, where it was claimed by a third party and a delivery to the sheriff was not made, where it is not shown but that the land is necessary to satisfy the debt. Garrity v. Thompson, 67 Tex. 1. And a levy upon real estate will not be enjoined on the ground that personal property was delivered to the sheriff where there is a remedy of certiorari at law. Texas M. R. Co. v. Wright (Tex.) 29 S. W. Rep. 1134.

And under La. Code Pr. art. 648, providing that the debtor shall not have the right to point out particular property to the sheriff when the creditor has a privilege or a mortgage on the property. an injunction will not be granted for refusal of the right. Lambeth v. Sentell, 38 La. Ann. 691.

And in Indiana the court of one county cannot enjoin a levy and sale, on process from another court, where it is claimed that realty should be sold before personalty, as the remedy is in the court issuing the process. Indiana & I. R. Co. v. Williams, 22 Ind. 198.

A defendant in an execution cannot obtain an injunction against a levy on the ground that sureties on the appeal bond given by the other defendants have personal property, which should be first exhausted. Kendrick v. Rice, 16 Tex. 254.

And an execution sale of work animals will not be enjoined on the ground that they cannot be sold separate from the plantation to which they belong, where the defendant points out the property to the sheriff. Dorsey v. Hills, 4 La. Ann. 106. And irregularity in a levy in that it was not made on realty instead of personalty, as required by statute, will not entitle an injunction against the same as oppressive, where the defendant in the execution does not offer to the officer property subject to the levy. Beaird v. Foreman, 1 Ill. 385, 12 Am. Dec. 197.

One of the defendants jointly bound cannot enjoin a sale on execution of his property on account of arrangements made between the defendants, nor because a prior levy was made on the property of another, who died before sale. Boyce v. Woods, 37 Tex. 245.

And the defendant in an execution cannot have a sale thereunder enjoined on the ground that property of another person was seized. Gusman v. De Poret, 33 La. Ann. 333.

An appeal in general terms in an action by the debtor to enjoin a fi. fa. because the property belonged to other than the debtor must be considered as embracing, not only the plaintiff, but also the sureties, in the injunction bond. Mitchell v. Lay, 4 La. Ann. 514, 3 La. Ann. 593.

But in Kenyon v. Clarke, 2 R. I. 67, it was held that the exemption of real estate from an execution sale until after personal property is exhausted and the body of the debtor has been taken in the execution applies to judgments against school dis tricts attempted to be enforced against a member of the district, and an injunction was allowed.

IV. Public property.

The sale of public property under execution will generally be restrained by injunction, and this is sometimes on the ground of statutory prohibition against such sales, or that such a sale is contrary to public policy.

An injunction will be granted against an execution sale of public school property on the ground of public policy, and to prevent a cloud on the title. State v. Tiedemann, 69 Mo. 306, 33 Am. Rep. 498.

And an injunction will be granted against an execution sale of land where the land has been condemned by the city for a park, as it will be held to be in the custody of the law, and the lien of the

creditor is transferred to the fund. Moore v. Barrett, 6 Phila. 204.

And buildings furnished by a parish and used for a court-house and jail are not subject to sale on execution, and the same will be enjoined. Police Jury of West Baton Rouge v. Mitchel, 4 La. Ann. 84. And the waterworks of a city are not liable to sale under an execution, and stock of a city taken on a transfer by the city of such waterworks to a corporation in trust for bondholders, under an act giving such exemption as to the stock of the city. is not liable to sale under execution, and the sale will be enjoined; and the statute continuing the exemption in another form does not impair an obligation of the contract. New Orleans v. Morris, 105 U. S. 600, 26 L. ed. 1184.

And under a statute prohibiting the issuing of writs of fi. fa. against a city, passed after an injunction was dissolved and an appeal taken, an injunction should be granted against a sale of city property seized on execution. New Orleans v. Ruleff, 23 La. Ann. 708.

And under such a statute a sale will be enjoined, especially where the judgment creditor had a check on the treasury which was a novation, and never offered to return the same. New Orleans v. Smith, 24 La. Ann. 465.

And an injunction will be granted against an execution on a judgment against a municipal corporation, as its property is held in trust for the public. Darling v. Baltimore, 51 Md. 1.

And public property is exempt from seizure. Police Jury of West Baton Rouge v. Mitchel, 4 La. Aun. 84.

But where an execution against a municipal corporation is enjoined, it is error to enjoin all further proceedings on the judgment. Darling v. Baltimore, 51 Md. 1.

V. Property in the custody of the law. Property in the custody of the law will be protected by injunction from seizure and sale on execution.

An injunction against the sale of property on execution will be allowed where it appears that such property is in custodia legis and is not subject to levy of execution, and a sale would confer no title. Moore v. Barrett, 6 Phila. 204: Cooper v. Newell, 36 Miss. 316; Ryan v. Parris, 48 Kan. 765.

And an injunction will be granted at the instance of receivers of a corporation to restrain a sale of goods belonging to the same on an execution against an agent of such corporation,although the corporation may be estopped to deny that the goods are subject to levy, having held him out as a partner; but the property, being in the custody of a receiver, should not be levied upon. Thompson v. McCleary, 159 Pa. 189.

And an execution sale will be enjoined where the property should be sold by a receiver to protect claims. Russell v. East Anglian R. Co. 3 Macn. & G. 104, 6 Railw. Cas. 501, 20 L. J. Ch. N. S. 257, 15 Jur. 935; Gardner v. Caldwell (Mont.) 41 Cent. L. J. 133; State v. King County Super. Ct. (Wash.) 39 Pac. Rep. 244.

So, property was held to be in the custody of the law, where an assignment for creditors was made prior to a suit for a mechanic's lien, and the assignee was not a party to such suit, and a sale under the lien was enjoined. Quinby v. Slipper, 7 Wash. 475.

And the same was held in a similar case, where the sheriff obtained possession of the goods in replevin, and then attempted to levy another execution. Ryan v. Parris, supra.

And an injunction was granted against the execution sale of a legacy pending the settlement by the administrator, as the same was regarded in the custody of the law. Stout v. La Follette, 64 Ind. 365.