| N.Y. Sup. Ct. | Jul 28, 1852
The injunction was granted upon the complaint in this action, duly verified by the oath of Cornelius S. Ward, one of the plaintiffs. The plaintiffs allege in their complaint that Samuel Ward died on the 11th day of March 1837, seized in fee of a farm of land containing about one hundred and eighty and a half acres, leaving Eleanor Ward, his widow, and the plaintiffs, together with Chapman S. Ward and Polly Ward, his only children and heirs at law; that; said Samuel Ward duly devised all of his real estate to his four children equally.
In the spring of 1850 the said Eleanor Ward and Chapman S. Ward executed and delivered to the defendant a mortgage covering the whole of said farm, to secure the payment of $2600 and interest; that the plaintiffs were both minors at the time of the giving of the mortgage as aforesaid. The complaint also alleges that the defendant has caused notice of the sale of said farm to he published in a newspaper in the county of Schoharie, and has posted up such notice at several public places in the town of Jefferson in said county, setting forth that said farm would be sold by virtue of a judgment of foreclosure, recovered on said mortgage against Eleanor Ward and Chapman S. Ward at a time and place specified in said notice and describing said farm therein as being in possession of said Eleanor Ward and Chapman S. Ward. The plaintiffs also allege that the defendant threatens to sell the whole of said farm according to said notice as they are informed and believe; that said mortgage and judgment are a cloud upon the title of the plaintiffs to their undivided half of said farm, and in case the defendant is permitted to sell the farm pursuant to said judgment and notice, such sale and the deed executed thereon will be injurious to the plaintiffs’ title. The plaintiffs also allege that they have requested the defendant not to sell the half of said farm devised to them by the
The complaint prays for a temporary injunction restraining the sale of said farm pursuant to said judgment and notice of sale, and for a judgment in said action perpetually restraining the sale of that portion of said farm devised to the said plaintiffs, and also that the mortgage and judgment of foreclosure may be set aside so far as relates to the half of said farm belonging to the plaintiffs.
The plaintiffs obtained a temporary injunction upon said complaint on the 8th day of July 1852, and the defendant now moves to vacate said injunction upon the ground that the mortgage executed by Eleanor and Chapman S. Ward, and the judgment of foreclosure recovered thereon, do not create a cloud at law or in equity upon the plaintiff’s title to the one-half of said farm.
Although the mortgage describes the whole farm, and purports tobe a lien thereon; yet in as much as it is only executed by Eleanor and Chapman S. Ward, and not by the plaintiffs, or either of them, their undivided half of said farm is entirely unaffected by said mortgage and the judgment of foreclosure recovered thereon.
In order to entitle the plaintiffs to a temporary injunction they must make a case, showing that the act complained of will not only produce an injury to said plaintiffs but that they are entitled to final relief by a perpetual injunction, as prayed for in the complaint (6 How. Pr. R. 89, 92-3; id. 341).
It should be recollected that the mortgage described in the complaint is only executed by Eleanor and Chapman S. Ward; that the plaintiffs in this action are neither parties to said mortgage, or to the judgment of foreclosure recovered thereon. It follows, therefore, that the mortgage and judgment are a nullity and can have no force or effect as agdinst the plaintiffs in this action. The mortgage, the judgment thereon and a sale under said judgment with a deed to the purchaser, all combined, can not affect the plaintiffs’ title in the least, because they were not parties to the mortgage or to the foreclosure suit thereon (Strong vs. Dollner, 2 Sandf. 444; Watson vs. Spence, 20 Wend. 260;
The purchaser is invested with the title of the mortgagors and nothing more; if they had a fee in one half of the farm at the time of giving the mortgage, the purchaser under the foreclosure sale obtains that title. If the plaintiffs in this action were tenants in common with the mortgagors owning a moiety or other share, or interest in said farm, such interest or share will remain unaffected by a sale under the mortgage or judgment of foreclosure as alleged in the complaint. It appears to be the settled law in courts of equity to deny relief to a party seeking the aid of the court to remove a supposed cloud upon his title, when upon the face of the proceedings from which the cloud or adverse claim is derived, it is clear that the law adjudges such claim to be void and ineffectual. I can not resist the conclusion that the complaint in this action very clearly shows that a purchaser under-the foreclosure sale, through which he can alone claim his title to said farm, only obtains a title to so much of said farm as belonged to the mortgagors at the time of executing the mortgage to the defendant. The complaint on its face alleges that the plaintiffs are the devisees and owners of one half of the farm under the will of their father. The mortgage executed by the widow and another devisee of the testator, describing the whole farm, can not divest the plaintiffs of their share or right in said farm. This being the obvious and undoubted legal result, as is manifest from the facts alleged in the complaint, I have no doubt that the preliminary injunction should be dissolved (2 Comst. R. 118; 3 Barb. R. 487, and cases there referred to).
The motion to dissolve the preliminary injunction is therefore granted, with $ 10 costs of motion.