9 Minn. 103 | Minn. | 1864
This was an appeal from an order allowing an injunction to restrain the Defendant from foreclosing a mortgage by advertisement. It was stipulated between the parties that the complaint in this action remains as reported in 7 Minn., 351, and that the saméis at issue,.and that the same shall be considered as at issue in the argument of the appeal from the order allowing an injunction in this action. The writ was issued on the petition of the Respondent, dated Nov. 12, 1863, and stating substantially the following facts, viz.:
That the cause was at issue, and on the calendar of the November term of the District Court of Scott County, and had been referred to Hon. S. Finch, and remains undetermined; that the action is one in equity, the relief demanded, among other things, being that the Defendant release and discharge of record a certain mortgage executed by petitioner to the Defendant, and also surrender a certain note which said mortgage was given to secure; that Defendant was proceeding to foreclose said mortgage by advertisement (stating the particulars in regard thereto). The petition then makes the following statement, viz.:
“ That such foreclosure of the said mortgage, pending the said action, and before the rights and interests of the parties involved in said action, dependent on the said mortgage and the facts connected therewith, shah have been adjudicated and determined, would materially embarrass and injure your petitioner in the premises, and complicate the said case, and your petitioner’s just rights and interests therein, as the same are stated and set forth in said complaint:”
The answer is not given in the paper book, and we know nothing of its contents further than we are informed by the stipulation that the cause is at issue. It is, perhaps, reasonable to infer from this that the material allegations of the complaint are denied by the Defendant Where an injunction has issued upon
The Plaintiff urges that the Defendant must obtain the relief sought in the proceeding to foreclose his mortgage by advertisement, by application to the court, by answer in this action, and that unless he does so he is barred from obtaining it elsewhere or otherwise.
The Plaintiff is mistaken in this view. The authorities cited (Comp. Sts., p. 481, sec. 23; Id, p. 541, sec. 71-2 ; 2 Id., p. 554, sec. 169; 6 Minn., 319;) are not applicable to a case of this kind. The statute has expressly given the mortgagee two remedies or methods of foreclosing his mortgage — the one by action in court, the other out of court, by proceedings ¡prescribed by statute. These two remedies differ in many important respects, as the time required for effecting the foreclosure, the expense, and time allowed for redemption. Where an action is brought to set aside a mortgage, (in which default has occurred) the mortgagee cannot be compelled in such action to ask affirmative relief, or be barred from foreclosing by advertisement, at least; and probably not from proceeding in court, since he might, on the foreclosure of his mortgage, desire other parties to be joined in the action. lie may simply defend in the action, and being successful proceed to foreclose his mortgage. In this case the action is still pending, yet upon the theory that the answer denies all the equities of the complaint, the Plaintiff is not entitled to the writ of injunction to restrain the Defendant in the exercise of a right guaranteed to him by statute.
But again, the petition fails to show any sufficient ground for the issuance of the writ. The only fact stated in the petition, not appearing in the complaint, is that the Defendant was proceeding to foreclose his mortgage by advertisement. This he had the legal right to do, and the exercise of that right will not be
But even waiving this objection, the statement of the petition is insufficient to justify the issuance of the writ. In substance it amounts to scarcely more than the allegation that, if the Defendant is permitted to foreclose Ms mortgage, the Plaintiff will suffer some injury and inconvenience. If it were admitted that the facts established this allegation, I am not aware of any like case in which, for such reason, a court of equity has interfered by writ of injunction to restrain the exercise of a legal right.
And, indeed, it is difficult to see, from the facts of the case, how it could be made to appear that the Plaintiff would sustain any great injury from the proceeding of the Defendant to foreclose his mortgage. If the Plaintiff has filed his lis pendens, and he should succeed in obtaining a decree to discharge the mortgage, the purchaser under the foreclosure would acquire no rights as against the Plaintiff, and it may be very questionable whether he would do so even without filing the lis pendens. At the most, in such case, the sale would only cast a cloud upon Plaintiff’s title, and as remarked in Armstrong vs Sanford, 7 Minn., 53, the injury is not of that kind that a writ of injunction should be granted to restrain. If the salo prima facie conveyed any right in the property, the Plaintiff would always have the evidence at hand to show its invalidity, since the decree cancelling the mortgage would be
With reference to the case of Bidwell vs. Whitney, 4 Minn., 76, cited by Respondent, it may be remarked, that the ruling in that ease does not conflict with the views here expressed. It was there ’held that a party proceeding to foreclose a mortgage by advertisement and sell the property for more than was due upon the mortgage, might be restrained by injunction. But this, of course, is to be understood, that a proper ease is shown for equitable interference, and not that the writ would issue, as a matter of course, upon the mere allegation that the Defendant was proceeding to sell for more than was actually due, and especially if such statement were denied, or facts set up which left the merits of the case doubtful. The writ of injunction is only used for the protection of rights which are clear, or at least free from reasonable doubt. Snowden vs. Noah, Hop. Ch. Rep., 347.
The order allowing the writ to issue is reversed, and the injunction set aside.
