Jones v. Myers

7 Blackf. 340 | Ind. | 1845

Sullivan, J.

— This bill was filed by the complainants the second mortgagees of a tract of land, and the object of it was to compel the first mortgagee to deliver up his mortgage to be cancelled and for an injunction. The bill states that in the year 1833, one John Conner being indebted to the defendant, Myers, in the sum of 103 dollars, mortgaged to him as'a security for said debt about eight acres of land, situate in the south half of the north-east quarter of section 22 in township 13 and range 12 east; that, afterwards, John Conner conveyed the same land in fee to Wilson Conner and James M. Conner for a valuable consideration; that Wilson Conner and James M. Conner, being indebted to the complainants in a large sum of money, did, on the 10th of June, 1841, mortgage said tract of land to them, the condition of which was that if said W. and J. M. Conner should pay to .the complainants the debt they owed them, within three years from the date of said deed, it should be void. The bill then alleges that the debt to Myers, which the first mortgage was intended to secure, has been fully paid, notwithstanding which Myers refuses to surrender or yield up said mortgage, but holds on to it, denying the payment, and threatens to file a bill to foreclose the same, &c. The prayer of the bill is to compel a surrender of the first mortgage, and to enjoin Myers from proceeding to foreclose. Myers, Wilson Conner, and James M. Conner, are made defendants to the bill. The defendants demurred. The Court sustained the demurrer and dismissed the bill.

The Court did not err in sustaining the demurrer. This bill was filed in February, 1842, more than two years before the complainants’ debt becdme due, and they have not shown that they were injured or likely to be injured by the alleged incumbrance. If they had shown that the existence of Myers’ mortgage was a prejudice to their security, rendering it less valuable, as, for example, that the' land mortgaged was not sufficient to pay both debts; or that the whole was but a slender or doubtful security for their debt, and that while the first mortgage remained unsatisfied, they could not make their security available for the full amount, their case would have been entitled to much consideration. But as it is, we do not perceive but that they have ample security for their i debt irrespective of the mortgage to Myers, and are in no danger of„ being injured. The complainants, then, have shown no reason for this 'application, and the bill was properly dismissed. On bill filed after forfeiture, the Court will decree between the mortgagees according to their respective interests.

C. B. Smith, for the plaintiffs. S. W. Parker, for the defendants. Per Curiam.

— The decree is affirmed with costs.