46 Wis. 123 | Wis. | 1879
The injunctional order in this case seems obnoxious to the objection taken to it by defendant’s counsel, of being a violation of the rights of the mortgagee under the mortgages, and really an attempt on the part of the learned circuit court rather to make a new contract for the parties than to enforce the one which they themselves had made. It is axiomatic in the law, that courts have no authority to make contracts for parties which will accord with judicial notions of fitness and propriety. Gibson, C. J., in Bash v. Bash, 9 Pa. St., 260. By the several mortgages, the mortgagee had the right, at any time when she might deem herself insecure, to talie possession of the mortgaged property, and sell the same
It is claimed, however, that it was a proper exercise of the jurisdiction of a court of equity to restrain the defendant from asserting this legal right. The case of Williamson v. New Albany, etc., Railroad Co., 1 Biss., 198, and other authorities, are cited in support of this position, and to the point that a court of equity will not enforce penalties but relieve against them. It is certainly familiar doctrine, that equity will relieve against penalties and forfeitures; but it has no application to the case at bar. In Williamson v. Railroad Co., Mr. Justice McLean declined, on the application of the trustee, to appoint a receiver of the railroad property in a foreclosure suit for default of payment of interest, holding that the appointment
The order appealed from must be reversed, and the cause remanded with directions to dismiss the complaint.
By the Court. — So ordered.