Union Iron Works v. Bassick Mining Co.

10 Colo. 24 | Colo. | 1887

Elbert, J.

The case of Schoolfield et al. v. The Bassick Mining Company, now pending on error in this' court, was a proceeding under the mechanic’s lien law, to enforce sundry liens against the property of the defendant therein. The decree was rendered in that case by the court below in favor of the several lien claimants, and a sale of the defendant company’s mining property, consisting of seven or more lodes, with improvements thereon, was had under the decree. It is claimed that this decree and sale are void for reasons which will be hereafter stated. The contention here is between judgment creditors of the Bassick Mining Company, to wit, White, Staples and the Union Iron Works, the complainant herein. Each of these judgment creditors had a right, under the statute, to redeem the property sold under the decree in the Schoolfield case. White redeemed and sold the property under an execution issued on his judgment. Staples, in turn, redeemed the property, and advertised it for sale under the execution issued on his judgment. The Union Iron Works, the complainant, instead of redeeming, filed its bill in the district court of Ouster county, asking that the defendant Staples be enjoined from selling the property under his execution. On this bill a temporary injunction was issued by the court below. Subsequently this injunction was dissolved, and a decree entered dismissing the bill. This is the case before us on appeal.

The leading facts as disclosed by the bill, and those upon which the equities of the complaint chiefly rest, are as follows: Cue Armstrong was one of several lien claimants in the Schoolfield case, and claimed and was decreed a lien on the Maine lode belonging to the defendant, the 'Bassick Mining Company. The other claimants in that suit claimed and were decreed liens, not only on the Maine lode, but on several other lodes, property likewise belonging to the defendant, the Bassick Mining Company. The court, notwithstanding the fact that the Armstrong lien was decreed on the Maine lode alone, ordered and directed generally a sale of all the property to satisfy all the liens. All of the property affected by the different liens was subsequently sold under this decree en masse.

It is contended by counsel for complainant that this order of sale'was void, and that the sale thereunder to satisfy the liens was also void. The sale was made July 11, 1885, but the complaint does not disclose who was the purchaser. This, however, is unimportant. If the sale was void, as claimed, he took no title to the property sold; that is to say, notwithstanding the sale, the title of the property remained in the judgment debtor, the Bis-sick Mining Company.

In January, 1886, the defendant White, as a judgment creditor of the Bassick Mining Company, caused an execution to be levied on the property in controversy, and paid the sheriff the sum of about $39,000, that sum being the amount necessary to redeem from the sale under the Schoolfield decree. The sheriff then proceeded and advertised the sale of the property under the White execution. This sale was made May 13, 1886. Upon the proposition that the order of sale in, and the sale itself under, the Schoolfield decree was void, it is claimed that this redemption and sale by White are also void. Freem. Ex’ns, § 321; Mulvey v. Carpenter, 78 Ill. 580; Johnson v. Baker, 38 Ill. 98; Keeling v. Heard, 3 Head, 592.

The sale under the White execution was on the 13th of May, 1886. At this sale the defendant White was the highest bidder and purchaser. The allegation in the complaint that Staples was the purchaser at this sale is admittedly a mistake. Thereafter, as the owner of a judgment against the Bassick Mining Company, the defendant Staples caused an. execution to be levied on the property, paid to the sheriff the sum of $60,016 redemption money, and advertised the property for sale on the 10th day of June, 1886. It is this sale that the court below was asked to enjoin. It is claimed, for the reasons given, that the redemption by the defendant Staples was void, and that the sale under his execution, if allowed to proceed, will likewise be void. Other questions are made respecting the regularity of the proceedings under both the White and the Staples execution, but we do not deem it necessary to notice them. Under the allegations of the bill the case of the defendants stands thus: The decree in the Schoolfield case, and the sale thereunder, the redemption by White, and the sale under his execution, were all void. The redemption by the defendant Staples was also void, and his sale, if allowed to proceed, will be of like character. The status of the complainant is this: On the 18th day of June, 1885, it levied its writ of attachment on the property in controversy. On the 15th day of August, 1885, it obtained judgment against the Bassick Mining Company for the sum of $16,795.58. On the 12th day of January, 1886, it caused an execution to be issued, and afterwards, on the 9th day of June, 1886, it filed the bill we are considering.

The only question presented is, Did the court below err in dissolving the injunction and dismissing the bill?

The power of courts of equity to restrain proceedings at law is well established. The jealousy, however, with which the jurisdiction has always been regarded, has restricted it to somewhat narrow limits. Fraud, mistake, and surprise in obtaining judgments are the most common grounds on which the jurisdiction is invoked. In this case it is to be observed the grounds of complaint do not arise out of the judgment sought to be restrained, but out of matter extrinsic the judgment. The judgment of the defendant Staples is unassailed. We are asked by the complainant to enjoin the sale under it until the Schoolfield case shall be decided by the appellate court. Two principal grounds are assigned:

1. That the complainant cannot redeem on its judgment under the statute, except at the peril of losing the redemption money paid should the decree in the School-field case be hereafter declared void by the appellate court. This is au embarrassment which arises out of the alleged void or voidable character of the Schoolfield decree, and is in nowise chargeable to the defendant Staples or his judgment. As a judgment creditor, the same risk confronted him, and he chose to take it. The complainant asks that he may be restrained until it, the complainant, may be advised by the decision of the appellate court whether or not it may safely proceed to exercise its statutory right of redemption. Whatever hardship may exist is the result of a rule of law, namely, that a purchaser at a sheriff’s sale, as well as a party redeeming, is bound at his peril to inquire whether it sufficiently appears on the face of the record that the court had jurisdiction. Freem. Judgm. § 509. We do not understand that the hardship this rule of law is liable to entail is a ground for equitable relief, nor are we cited to any authority that so holds.

It is claimed, however, by the complainant:

2. That the sale under the Staples execution, if allowed to proceed, will be void, and will cast a cloud upon the title of the property to which the complainant is looking to satisfy its judgment. It is true, courts of equity interfere, not only to remove, but to prevent a cloud upon a title. High, Inj. § 147. The cases, however, illustrative of the jurisdiction, proceed upon much clearer rights and equities than any presented by the bill .under consideration. A number of recognized rules interpose between the complainant and the relief it asks. “It is a general rule that the enforcement of a legal right will not be enjoined in equity except upon a clear showing of a right superior to that which it is sought to enjoin.” High, Inj. § 152. The complainant and the defendant are both judgment creditors, and stand in pari statu. There is no superior right upon the part of the complainant. Each is at liberty, under the statute, for the purpose of satisfying his judgment, to issue an execution and levy it upon any property or upon any interest, either legal or equitable, in any property belonging to the judgment debtor. The defendant Staples, in his levy and sale, is proceeding under the statute, not in any wanton or inequitable disregard of the rights of the complainant, but in the method prescribed by the statute, seeking satisfaction of his judgment. In this connection it is tobe remembered equity will not interpose and enjoin an execution creditor, where by so doing it will destroy or imperil his rights, and prevent him from obtaining that satisfaction of his judgment to which he is both legally and equitably entitled. Freem. Ex’ns, § 440. It is true that questions may arise as to the regularity of proceedings under the execution, and the soundness of the defendant’s title, should the proposed sale proceed; but this is matter of dispute.

It is contended upon the part of counsel for defendants that the Schoolfield decree, and the proceedings thereunder, as well as the proceedings under the White and Staples execution, are not void; that, if irregular, they are voidable only. The different legal results, as respects the rights of purchasers and judgment creditors redeeming, flowing from these two different positions of the contending parties, are well understood and need not be stated. Freem. Ex’ns, §§ 339-345. If the position of defendant’s counsel be correct, then, instead of clouding the- title, the sale of the defendant Staples will pass the title.

The question is presented, should the court below have gone into the questions raised touching the void or voidable character of the Schoolfield decree, and of the proceedings thereunder, especially while it was pending on error in the appellate court, and likewise into the questions raised' touching the void or voidable character of the proceedings under the White and Staples executions? We are not prepared to admit, nor do we know of any authority for the broad proposition, “that the complainant has a right in equity to have the regularity of former sales determined in advance of its redemption.” In such matters it is for judgment creditors to proceed as they shall be advised. We do not understand it to be the practice of courts of equity, upon a bill of this nature, to pass upon a question of title in advance of its acquisition by either the defendant or complainant. The rule is that, “in general, questions of title being properly triable at law, equity will not interfere to restrain a sale of real estate under execution, the title to which is in dispute; but will leave the parties to pursue their remedy in a legal form.” High, Inj. § 152. So, too, it is to be observed that had the court gone into the questions raised, and held the several sales void, an injunction would not have issued as of course. The rule is that a sale of real estate under legal process will not be enjoined because of irregularities in the proceedings, or because the judgment on which process issued was “void, where no serious injury or embarrassment to title is shown as likely to result from allowing the sale to proceed.” High, Inj. § 248. It may well be doubted whether the injury suggested by the complainant in this case, viz., “ thedepreciation of the value of the property by reason of the cloud cast by a void sale, ” is not too remote and speculative to justify the restraint of the defendant in the exercise of his statutory rights, even if the other objections which we have given to the exercise of equity jurisdiction ¿id not obtain.

For the foregoing reasons, we are of the opinion that the complainant does not show any such equity as entitles him to the relief prayed, and that the court below did not err in refusing to entertain the bill. The temporary restraining order heretofore issued must be dissolved, and the judgment of the court below affirmed.

Affirmed.