Emmons v. Gille

51 Kan. 178 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J.:

This was an action on two promissory notes, and for the foreclosure of a mortgage given to secure the payment thereof, which notes were given for part of the purchase money of the land described in the mortgage. The defendants were in the peaceable possession of the mortgaged premises at the time of the commencement of the foreclosure proceedings, and sought by answer to enjoin or prevent any personal judgment or foreclosure proceedings, on the ground of an alleged defect in title, until final judgment should be rendered in a suit pending in the United States circuit court for the district of Kansas, between the defendants and Lip-man Myers, who claims to be the owner of an undivided five-sixteenths of the land described in the mortgage. There was no allegation in the answer of the insolvency of James M. Gille or Sarah J. Skelton, the vendors, or of any fraudulent or deceitful conduct on their part. D. R. Emmons, the purchaser of the land, took actual possession thereof under his deed, having covenants of warranty, and continued in the actual possession thereof without eviction. After his purchase, D. R. Emmons filed his bill in the United States circuit court for the district of Kansas against Lipman Myers, of Texas, alleging therein that Myers, for the purpose of clouding his title to the land described in the mortgage, made and asserted a claim therein adverse to his estate and title, and asking that his title as against Myers be forever quieted and set at rest. Myers filed his answer, alleging that he was the owner in fee simple of an undivided five-sixteenths of the land, and also filed a cross bill, claiming an undivided five-sixteenths of the land, and asking possession thereof.

Under the pleadings and proof presented, we do not think that Emmons, or the other defendants below, were entitled, as a matter of absolute right to any stay or injunction against the collection of the purchase money on account of the pend-ency of the actions in the United States circuit court. (High, Inj. [3d ed.], §§ 384-390; Church v. Fisher, 40 Ind. 145.) In 2 Jones on Mortgages, §1500, it is said:

“It is no defense to a foreclosure suit on a purchase-money mortgage that there is an outstanding paramount title or incumbrance when there has been no actual eviction. The mortgagor is left to his remedy on the covenant.” (Peters v. Bowman, 98 U. S. 56; Alden v. Pryal, 60 Cal. 215; High, Inj. [3d ed.], § 389; Gayle v. Fattle, 14 Md. 69; Kinports v. Rawson, 29 W. Va. 487.) The courts may interfere to prevent a foreclosure on a purchase-money mortgage, if an action has been commenced on an outstanding title against the grantee and mortgagor, and the vendor is insolvent, or has been guilty of fraud or deceit. But such a case is not presented. (Wilts. Mortg. Forcl, ed. 1889, § 431, and cases cited; Woodruff v. Bunce, 9 Paige Ch. 442; Bumpus v. Platner, 1 Johns. Ch. 213. The title to all of the mortgaged property is not contested in the action pending in the United States circuit court. It does not appear that the defendants below paid or offered to pay the money due upon the mortgage of the land to which the title was not contested. Then, again, the outstanding title was brought, in the first instance, into court by the mortgagor himself. If the district court had postponed the hearing of the case, probably we would not have interfered. (Morris v. Barnwell, 60 Ga. 147.) A preliminary injunction is not a matter of strict right. Its issue rests with the sound discretion of the judge, and before one is issued there should be such a full showing of all the facts that the judge acts with a thorough understanding of the entire case. (Olmstead v. Koester, 14 Kas. 463.) The probable results of the final hearing, and the probable effects of a temporary restraining order upon the respective rights of the opposing parties, are proper considerations in determining the question of issuing an order. (Akin v. Davis, 14 Kas. 143; Conley v. Fleming, 14 id. 387.)

The judgment of the district court will be affirmed.

All the Justices concurring.