#### N. M. CHURCH v. VAUGHN, HEMPHILL & COMPANY et als.

(Filed 14 May, 1919.)

Pleadings — Demurrer—Judgments—Injunction—Cloud on Title — Equity.

In a suit to restrain the execution under a judgment and to remove the lien thereof as a cloud upon the title to plaintiff’s lands, there was allegation that the plaintiff was a purchaser of the lands, and obtained his deed therefor, at a sale made in pursuance of a judgment entered by consent of the defendant and his creditor that title in fee should be made to the purchaser under the consent judgment, and that at the time the consent judgment was entered and the subsequent taking of his deed the defendant had acquired the prior judgment under which the execution was threatened without divulging the same: Helé, a demurrer to the complaint was bad and plaintiff’s motion to continue the restraining order to the hearing was properly allowed.

*432.Appeal by defendants from Cline,'J., at September Term, 1918, of' "Watauga.

On tbe return of tbe restraining order tbe plaintiff moved for the-continuance thereof to the bearing, and tbe defendants moved to vacate-tbe restraining order and to dismiss tbe action. Tbe court denied the-motions of tbe defendants and continued tbe restraining order to the-bearing. Appeal by defendants.

No counsel for plaintiff.

Charles G. Gilreath for defendants.

Claek, C. J.

Tbe complaint alleges that at Spring Term of Watauga,. 1918, a consent judgment was entered in tbe case of J. 0. Cook against these defendants wherein John II. Bingham was appointed commissioner to sell a town lot in Boone, described in said judgment, and by consent be was directed to make deed in fee to tbe purchaser upon payment of tbe purchase money; that the commissioner duly advertised and sold tbe property. Tbe plaintiff became tbe purchaser and, having paid the purchase money in full, tbe commissioner executed to him a deed in fee for tbe property. Tbe complaint alleges further that prior to the date of said consent judgment, Hancock Bros. & Co. and tbe Lynchburg Shoe Co. bad obtained judgments against J. C. Cook which Avere docketed in Watauga and were assigned to these defendants.

Tbe complaint avers that tbe defendants, having consented to a judgment under which tbe land of Cook was sold, that title in fee should be made to tbe purchaser, and neither then nor at tbe time tbe plaintiff bought tbe land made knoAvn tbe fact that said defendants held said docketed judgments, which were liens on said land, are estopped to sell tbe land under said judgments.

Tbe plaintiff seeks to restrain a sale of tbe land under said judgments as a cloud upon bis title and to have them canceled. Tbe judge finds the facts stated in tbe complaint to be true, there being no evidence to the contrary, and properly continued tbe restraining order to tbe bearing. The demurrer, that tbe complaint did not state facts sufficient to constitute a cause of action, was properly overruled.

Affirmed.