delivered the opinion of the court.

This case comes up from the district chancery court at Holly Springs.

The Farmers and Merchants Bank of Memphis held a deed of trust upon certain slaves of John N. Phifer, to secure the payment of a debt due to it. Byrne became the owner of a judgment against Phifer, and caused an execution to be levied upon the slaves thus conveyed to the bank. This bill was filed to enjoin the sale under the execution, by the trustees in behalf of the bank. The injunction was made perpetual in the court below, and the slaves directed to be surrendered to the trustees.

The deed of trust is older than the judgment of Byrne, and *83there is no evidence to show that it is fraudulent; on the contrary, the transaction appears to have been a fair one. It was therefore proper to make the injunction perpetual to some extent. Payments have been made upon the deed of trust, and the answer insists that but little is due upon it. It is certain that the bank has no claim to more of the property, than will satisfy what is due upon the debt secured. It will be better to settle the whole matter of controversy in this suit, and so put an end to the litigation. The amount due should have been ascertained, as it was disputed, before the whole injunction was made perpetual.

The decree will be reversed, and the cause remanded, with directions for an account to be taken of what is due upon the deed of trust to the bank. Upon the coming in of that account, the injunction will be made perpetual, as to so much of the property as will be required to pay the sum so due, to be ascertained by sale under the deed of trust, and the balance of the property levied on, if any remain, will be subject to sale under the execution.

In regard to a mere incumbrancer, it is doubtful if the court of chancery has jurisdiction to interpose in his behalf by injunction. See Bowyer v. Creigh, 3 Rand. 25. But as the point has not been raised by demurrer, we shall not throw any obstacle in the way.

Decree reversed, and cause remanded.