Fair v. Cummings, 72 So. 389

Fair v. Cummings

72 So. 389 | Ala. | 1916

Opinion on the Merits

ON THE MERITS.

(2) The respondent prayed that his answer be taken as a cross-bill, and that the foreclosure had after the bill was filed by the decree of the court be ratified and confirmed. This was in recognition of the law that, as the court had acquired jurisdiction of the entire matter upon the filing of the original bill, the respondent therein could not oust said jurisdiction by a foreclosure of said mortgage thereafter, although no temporary injunction issued to prevent it.

(3) It is therefore held by this court that, while a foreclosure thus had is not absolutely suspended by the mere filing of the bill, yet its exercise is subject to the equity of the bill as decreed by *134the court, and subject to be set aside by the court if complainant is awarded .relief. Such was the holding in the recent case of Carroll v. Henderson, 191 Ala. 248, 68 South. 1. See, also, Johnson v. Smith, 190 Ala. 521, 67 South. 401.

The original bill alleged that the complainants were in possession of the property, and we find no denial of this averment in respondent’s answer.

(4) The petition for the injunction shows that the petitioner is resting upon his rights as purchaser at the foreclosure sale had. as before shown, during the pendency of the suit, and that he is attempting to rent the property, collect the rents thereon, and acauire the possession of the same as purchaser, and that this he sought to do by procuring an injunction against any interference on the part of the complainants. It therefore seems, from the pleadings, that the respondent sought by his petition for injunction to acquire in fact the possession of the property from the complainants. In Yellow Pine Lbr. Co. v. Sutherland-Innis, 141 Ala. 664, 37 South. 922, this court used the following language: “It is a rule of almost universal application that an injunction will not issue to take the property out of the possession of one party and put it in possession of another.”

There may be exceptions to this rule, but with them we are not here concerned. Many cases are cited in the note to the case of Atkinson v. Crowe Coal Co., 39 L. R. A. (N. S.) 31 et seq. As pertinent to the question here under consideration the author of the note makes the following observation: “In general, the function of a preliminary injunction is to afford preventive relief and preserve the status quo until the rights of the contending parties may be judicially investigated and determined. Ordinarily, it cannot be used to take the possession of the property from one party to a suit and transfer it to another, where the title or right of possession is in dispute.”

It appears to our minds quite clear that the purpose of the petitioner in seeking the injunction was to take the possession of the property from complainants and transfer it to himself. We do not think this was a proper function of the temporary injunction in this cause, and consequently hold that the court below should have granted the motion of the complainants and dissolved the injunction. There was no averment in the petition that the respondent was in danger of losing his mortgage debt, but merely that he would lose the rents during the pendency of the suit. If *135there was danger of the loss of any part of the mortgage indebtedness, it would appear that, as a more appropriate remedy, the cross-complainant could have applied for and secured the appointment of a receiver to take charge of the property. In this manner the court would have preserved the same, as well as the rents, to await the final determination of the cause.

We therefore conclude that the court erred in overruling the motion to dissolve the injunction. The decree of the lower court is accordingly reversed, and one is here rendered dissolving the temporary injunction heretofore issued in the cause. Any question as to the restitution of the possession to the complainants will be appropriately addressed to the court below.

Reversed and rendered.

Anderson, C. J., and McClellan and Sayre, JJ., concur.

Lead Opinion

ON THE MOTION.

GARDNER, J.

Motion is made by counsel for appellee to dismiss this appeal, upon the ground that, after the rendition of the decree overruling the motion to dismiss the temporary injunction, the complainants proceeded with the examination of witnesses upon the merits of the case. It is insisted that this was a waiver of the right to review by appeal the said decree.

(1) The original bill attacked the validity of the mortgage, for want of consideration, duress, etc. The injunction sought by the cross-complainant was merely an incident to the main cause, and the decree overruling the motion to dissolve the same in no manner affected the merits of the case. In short, the merits of the case were in no manner involved in the question of dissolution or retention of the temporary writ of injunction. We are unable, therefore, to see how the mere fact that the complainants pro-ceeded to the examination of witnesses on the merits of the case could in any manner be construed as a waiver of the appeal on the decree overruling the motion to dissolve the injunction.

The motion to dismiss the appeal is therefore overruled.

Concurrence Opinion

McCLELLAN, j.

I desire to make a brief supplementary statement in connection with my concurrence. In my opinion neither Carroll v. Henderson, 191 Ala. 248, 253-258, 68 South. 1, nor Presnall v. Burgess, 181 Ala. 263, 61 South. 804, have any bearing upon this cause. Here the allegation of the bill is that the mortgage involved was executed in consequence of duress, thus charging that the instrument was utterly void. Under this state of averment the effort to foreclose, after the bill was filed, was subject to the ordinary rule of lis pendens. The cause brought under consideration in Johnson v. Smith, 190 Ala. 521, 67 South. 401, had in it two very material factors that distinguish that cause from both Carroll v. Henderson and Presnall v. Burgess, supra, viz: (a) The averment that the respondent (the mortgagee’s assignee) hindered or prevented a tender, looking to redemption, by the complainant, by refusing to give her, upon request, a statement of the amount due on the mortgage and the credits resulting from payments made on the mortgage debt; and (b) the allegation that the assignee (respondent) had theretofore taken possession of personal property of the mortgagor “sufficient in value to pay off said mortgage,” thus averring the complete discharge of the mortgage debt.