29 Minn. 183 | Minn. | 1882
This action is brought for the purpose of cancelling a mortgage and preventing its foreclosure. Proceedings to foreclose by advertisement having been instituted, a temporary injunction was issued, restraining the sale. Defendant’s motion to dissolve having been denied, he appeals.
Was the refusal to dissolve error? At the time of the execution of the mortgage the mortgaged, premises were, and ever
The general rule is that when all the equities of the complaint are fully and positively denied by the sworn answer of the defendant, (as they are in the present instance, as well as by the affidavits,) an interlocutory, or, as our statute styles it, a temporary injunction will be dissolved. Moss v. Pettingill, 3 Minn. 145 (217;) 2 High on Injunctions, § 1505. To this rule there are exceptions, resting upon recognized principles of equity.
The dissolution, like the granting and continuing, of such injunctions,. is largely a matter of discretion, to be exercised according to the nature and circumstances of the particular case, — a consideration of much weight when the action of the original tribunal in reference to the same comes before an appellate court for review. 2 High on Injunctions, § 1508; Poor v. Carleton, 3 Sumn. 70; De Godey v. Godey, 39 Cal. 157. But the discretion referred to is nevertheless a sound
In the case at bar, in addition to an explicit denial by the answer of all the equities of the complaint, it appears by the answer, and also by the accompanying affidavits, that the mortgage was received by the defendant upon a valuable and now fully-executed consideration, to wit, the extensions before mentioned. This is not denied. The plaintiff in her complaint alleges that she was imposed upon by the fraud of her husband. She offers no excuse for allowing herself to be thus imposed upon. For all that appears, the deceit practised upon her is chargeable to her own pure negligence. In such circumstances the defendant, if (as his answer and affidavits tend to show) he has taken the mortgage in good faith, and upon a valuable and now executed consideration, should not be the loser. She put herself in her husband’s hands, and cannot charge the consequences upon the defendant. Even if she could offer any reasonable excuse for her negligence in not informing herself of the contents of the mortgage before executing it, the excuse ought not to affect the defendant, unless the facts and circumstances constituting the excuse are brought home to him. To be sure, she attempts to connect the defendant with the fraud, by alleging that her husband acted for and in behalf of him in practising it upon her. But this is fully denied, and, looking at the natural and usual course of business, and the in-
We are therefore of opinion that the denials of the answer are not only sufficiently full and explicit to meet any and all equities of the complaint, but that the decided probability, in view of the new and undenied matter alleged in the answer and accompanying affidavits, is that the denials are true. We can therefore see no reason why the court, in the exercise of a sound legal discretion, or otherwise, should in this case have made an exception to the general rule as to the effect of full and explicit denials in an answer of the supposed equities of a complaint, and therefore no reason why the temporary injunction should not have been dissolved, Even if it be admitted that the plaintiff may possibly be able, upon a final hearing, to maintain the allegation of her complaint, still the dissolution of the injunction can work no irreparable injury or great hardship. She can preserve her rights as respects the homestead, during the litigation, by a proper lis pendens, and, if the foreclosure sale goes on, she has her redemption.
The order refusing to dissolve the injunction is reversed, and the injunction dissolved.