16 Minn. 123 | Minn. | 1870
By the Court
It appears from the finding of the court below, that the plaintiff, being the owner of a certain note and mortgage known as the Sholl note and mortgage, and the defendant the owner of certain notes and a mortgage securing the same, which had been executed by the plaintiff' and ran to the defendant, both parties entered into a contract, by the terms of which the plaintiff was to assign and deliver the Sholl note and mortgage to the defendant, and the defendant, on his part, was to cancel and discharge of record the mortgage so executed by the plaintiff, as well as to cancel and deliver up to the plaintiff the notes thereby secured. The plaintiff has duly performed upon his part, and, having made an ineffectual demand for performance on the part of the defendant, the prayer of his complaint is, that the mortgage executed by him may be adjudged to be canceled and discharged of record, that a certain foreclosure thereof may be set aside, and the notes executed by him may be adjudged satisfied and the defend
The defendant contends that there was no consideration for the contract and that it was “ contrary to the statute of frauds.” We think the assignment and delivery of the Sholl note and mortgage a sufficient consideration, and that the statute of frauds is satisfied by the plaintiff’s full performance.
But the defendant insists that the plaintiff is not entitled to the equitable relief sought because he has an adequate remedy at law, inasmuch as the notes are “ overdue and in the hands of the original payee, so that they could not be used or transferred to prejudice his defence; and no special ground or even apprehension of injury is stated in the complaint calling for the interposition of equitable relief.” The defendant having in this case expressly agreed to cancel and deliver up the notes, the granting of the relief sought is simply to compel the specific performance of his express contract, and is in truth the only adequate and complete remedy for the plaintiff. If an action were brought upon the notes, the plaintiff might be able to make a successful defence; but he may be prevented from doing this in consequence of the lapse of time, the death, removal or forgetfulness of witnesses, the loss of documentary evidence, and by other contingencies not in his control. There is no good reason why the plaintiff should be subjected to this risk, nor any injustice in compelling the defendant to do what he agreed to do.
Upon the principle of quia timet the plaintiff is entitled to the relief granted. As Judge Story remarks, “If an instrument ought not to be used or enforced, it is'against
Judgment affirmed.
