Walker v. Radford

67 Ala. 446 | Ala. | 1880

BRICKELL, C. J.

— The bill is filed by the appellant, a mortgagee of personal property, before the maturity of the mortgage debt, and while the mortgagor was entitled to possession to prevent tbe removal of the property beyond the State. A court of equity has jurisdiction to restrain the mortgagor of lands, in possession, from committing waste, if thereby the security for the mortgage debt is rendered inadequate. Upon the same principles, the court will interfere to restrain injuries to, or the removal beyond, the jurisdiction of the court of chattels subject to mortgage; and the court will interfere before the law day of the mortgage, and before the mortgagee has a right to proceed at law. — High on Inj. § 447. The statute (Code of 1876, §§ 3857-63), when a case for equitable interference is shown, would authorize the issue of a.writ for the seizure of the property, if the mode of procedure it prescribes is observed, instead of an injunction which would be the appropriate remedy in the absence of the statute. *

The ground of interference is the prevention of injury to the future or present rights of the mortgagee, for which the law does not furnish an appropriate and adequate remedy, The injury must be shown, and it must be shown that the mortgagor, or those claiming under him, are about doing, or have done, some act which is violative of the rights of the mortgagee, and beyond his right as mortgagor in and entitled to possession. If it is conceded to the appellant, that a removal of the personal property beyond the jurisdiction of the court was apprehended, and was intended and about being made, it was a mere temporary removal, not intended to be continued until the maturity of the debt, and the law day of the mortgage. Nor does it appear there was any increased probability of deterioration in value because of the mere temporary removal, or that in consequence, the rights of the mortgagee were placed in serious jeopardy. It is the jeopardy of the rights of the mortgagee by the removal of the property beyond the reach of his legal remedies when he is entitled to resort to them, that forms a ground of equitable interference. As it is in cases at law, a ground for an attachment at the suit of a creditor, that his debtor is removing his property beyond the State, without the jurisdiction of its courts, depriving him of the legal remedies he may here pursue. But it is not intended that the mortgagor, or the debtor, shall be hindered and denied the legitimate use of the property, in subservience of his convenience or pleasure. A mere temporary removal of the property, for use and convenience, not intended to affect the rights of the mortgagee, or to embarrass, or to impair them, accompanied by an honest intention to return it to the State, before the legal rights .of the mortgagee will attach, will not justify a court of equity in intervening by injunction, or by the issue of the statutory writ of seizure. The removal must place his rights in jeopardy, and it must be inconsistent with a legitimate use of the property by the mortgagor. The removal intended, was of horses and a wagon, by the widow of the mortgagor, in making a brief visit to her mother in Georgia, with a manifest intention of returning before the law day of the mortgage, and afforded of itself no ground for a reasonable apprehension, on the part of the mortgagee, that the property would not be forthcoming when his legal rights should attach. For this reason, without regard to any other question which is supposed to be involved, there is no error in the decree of the Chancellor.

Affirmed.