107 Ind. 248 | Ind. | 1886
Complaint by Joseph H. Hartley, John Ross and John W. Switzer, charging that prior to the 1st day of November, 1882, Thomas F. Redmond was indebted to
A temporary restraining order was issued as demanded, and, upon their appearance to the action, McCormick and Redmond jointly demurred to the complaint, but their demurrer being overruled, Redmond demurred separately and his demurrer was sustained.
At the final hearing between the plaintiffs and McCormick, the circuit court made a finding in favor of the plaintiffs, and entered an order annulling and setting aside the judgment of foreclosure obtained by McCormick against Redmond, and perpetually enjoining and inhibiting McCormick from enforcing or attempting to enforce such judgment.
McCormick assigns error upon the overruling of the demurrer filed by him and Redmond jointly, upon the alleged ground that the complaint was insufficient as against him as well as Redmond.
In the first place, all other things being equal, equity favors the more diligent. 'Where one, by his negligence, permits another to obtain a business advantage over him, his negligence will be taken into account against him upon an application for equitable relief against the advantage which ,has thus been obtained over him. This is too elementary to require the citation of authorities. No such a question of negligence is, however, presented in this case. The complaint charged that Redmond owed the plaintiffs a pre-existing debt, and that his mortgage to McCormick was to hinder, delay and defraud the plaintiffs in the collection of their debt. This the demurrer admitted, and, the facts being admitted, the McCormick mortgage, however valid as between the parties, became junior and subordinate to the mortgage of the plaintiffs.
In the next place, it is true, as contended, that until a creditor acquires a lien upon the property of the debtor, the latter has full dominion over his property, and may convert one species of it into another species, and may alienate to a purchaser. It is also true, that without such a lien a creditor can not have an injunction to prevent the
This was not a suit to foreclose the plaintiffs’ mortgage. Nor was it an action to recover a judgment for the mortgage-debt. It was simply and only an appeal to the equity jurisdiction of the circuit court for the protection and preservation of the mortgaged property as a security for the payment, of the debt when it should become due. For the purposes of this suit, therefore, it was quite immaterial whether the mortgage debt was or was not due.
In the third place, the plaintiffs, having obtained a mortgage to secure the payment of their debt, had the right to-resort primarily to the mortgaged property for its payment,, and to take such measures as were necessary for its protection and preservation without reference to whether Redmond might bo solvent or insolvent when their debt should become due.
In the fourth place, the allegations that the mortgaged property was liable, and was about to be sold on a judgment of foreclosure obtained for the purpose of hindering, delaying- and defrauding the plaintiffs, and under circumstances which might and probably would result in an ultimate loss to them of all their interest in the property, were allegations of facts: from which a material and probably irreparable injury to the: plaintiffs might be inferred.
In the fifth place, all matters pertaining to the foreclosure of a mortgage are inherently of equitable jurisdiction. Jones Mort., section 1443.
The protection and preservation of mortgaged property, as a security for the payment of the mortgaged debt, also pertain to the same jurisdiction. Herman Chat. Mort. 485, and authorities cited. So, also, do proceedings instituted, as in this case, for relief against fraud. Pomeroy Eq. Juris., sections 119, 164, 1230, 1345; Bump Fraudulent Conveyances, 530.
The judgment is affirmed, with costs.