¶1The opinion of the Court was delivered by
¶2This was a complaint in the nature of a bill in equity to restrain the action at law brought by the defendants against the present plaintiff in which judgment has been given. (See next case).
¶3The complaint presents no equity that would warrant an interference with the legal rights of the defendant, as purchaser, under the judgment against H. Macon.
¶4*48The only fact alleged in support of an equity in the plaintiff to restrain the suit to enforce the legal title of the defendants is, that 0. Barber was present at the sale for partition and did not forbid the same. This fact was denied by the answer, and, if material, should have been proved. But it is wholly immaterial, for, standing by itself, it does not warrant the conclusion that the plaintiff seeks to draw from it. This question, as well as all the other questions properly arising on the complaint and answer, are conclusively ruled by Moore vs. Wright, (14 Rich. Eq., 132).
¶5That case holds, distinctly, that a purchaser under a partition among distributees has no equity to restrain a judgment creditor of the ancestor of the distributees from enforcing such judgment against any portion of the estate bound by such judgment, on the mere ground that it can be satisfied out of other assets, without prejudice to the plaintiff’s right, which would otherwise be defeated, and that an allegation that the party stood by and did nothing to prevent this sale did not give rise to such an equity.
¶6The judgment creditor has a right to select as to what property of the judgment debtor shall be sold under his execution. — Long-worth vs. Scriven, (2 Hill, 298.) Unless, therefore, there is a general equity between the parties, or such an abuse of the right of selection as shall amount to a fraud on the rights of third persons, that legal right cannot be restrained on equitable grounds. Whatever equity the plaintiff might have been entitled to before the sale under the judgment, to require the application of the proceeds of the foreclosures to the satisfaction of the execution, he lost, as to the defendants, by his laches in not moving before title vested in him. A question was made below, whether the complaint was properly brought to restrain the action for the recovery of the land. The proper course of practice, where a defendant has rights, upon grounds that formerly authorized the filing of a bill to restrain an action at law, which he desires to oppose to a recovery in an action brought against him, is to interpose such rights by way of answer or counter-claim. He may, in this way, not only take advantage of them by way of defeating the plaintiff’s judgment, but may seek and obtain affirmative relief appropriate to the case thus made by him.
¶7If the Circuit Court should, instead of allowing a defendant to amend his answer, so as to bring forward matters proper for a bill in equity to restrain an action at law, allow the party to prose*49cute a cross action in the nature of such a bill, we are not prepared to say that such subsequent proceeding would be without jurisdiction or liable to reversal on that ground. But as the present suit was dismissed as to the merits, that question does not come before us at present.
¶8The judgment below should be affirmed and the appeal dismissed.