Weems v. Roberts, 96 Ala. 378

96 Ala. 378 | Ala. | 1892

"WALKER, J.

-All claim of tbe complainant fin tbis case to equitable relief rests upon tbe allegations of tbe bill to tbe effect that bis conveyance to McQ-organ, which upon its face is an absolute, unconditional deed, was really given as a mere security for a debt, and was intended by tbe parties to operate as a mortgage. ■ If such was tbe case, tbe complainant is entitled to have tbe instrument, declared a mortgage, and to redeem as mortgagor. — Mitchell v. Wellman, 80 Ala. 16; Turner v. Wilkinson, 72 Ala. 861. But, if tbe transaction between tbe complainant and McG-organ was, as tbe conveyance on its face expresses, an absolute, unconditional sale, tbe whole case alleged in tbe bill falls to tlie ground. Of course, there can be no redemption from an absolute sale, and, if tbe complainant does not occupy the position of a mortgagor, be is without any standing in equity to complain of tbe proceedings at law instituted by Eoberts, tbe legal owner, to recover possession of tbe land.

Tbe alleged agreement and understanding of tbe parties that tbe instrument should operate merely as tbe security for a debt constitutes tbe foundation equity of tbe bill. Tbe sworn answers, made by parties having knowledge of tbe facts, exclusive of what is stated on information and belief, contain unequivocal denials of tbe allegations upon which tbis equity of tbe bill rests. These denials are statements, upon knowledge, of matters of fact. In tbe affidavits of tbe two defendants to tlieir respective answers, they swear that “tbe facts stated in tbe ■ foregoing answer are true.” Tbis amounts to an explicit statement that tbe denials express tbe truth of tbe matter. There is no merit in tbe objection that tbe affidavits do not sufficiently show that tbe responsive allegations of tbe answers are sworn to as true.

The general rule is that when tbe sworn answer contains a full and complete denial of tbe allegations on which tbe right to an injunction rests, tbe injunction should be dissolved on tbe denials of tbe answer. If, however, it can be seentbat tbe dissolution of tbe injunction may involve irreparable mischief to tbe complainant; or that, in tbe event of tbe complainant maintaining tbe truth of bis version of tbe matter in controversy, be will have been subjected id greater injustice or inconvenience by tbe dissolution of tbe injunction before a final bearing, than- tbe defendant could be exposed to by a continuance of tbe writ; or that there is a special propriety, in tbe peculiar circumstances of tbe case, in maintaining tbe status quo between tbe parties until tbe dispute between them can be finally determined on tbe evidence ; — then tbe court may, in tbe exercise of tbe discretion with which it is vested in such matters, retain tbe injunction until a final bearing can be bad on tbe merits. — Harrison v. Yerby, 87 Ala. 185; 3 Brick. Dig. p. 352, §§ 308 et seq. There are no circumstances in tbe present case to justify a departure from tbe general rule. Tbe bill does not allege tbe insolvency of either of tbe defendants. There is nothing to show that tbe complainant can not obtain, without tbe aid of tbe extraordinary remedy afforded by tbe writ of injunction, full redress for any wrong be may suffer at tbe bands of either of tbe defendants. It does not appear that tbe retention of tbe temporary injunction is necessary for bis protection, in tbe event of bis success in tbe suit. It was, therefore, proper to dissolve tbe injunction on tbe denials of tbe answer.

Tbe circumstance that tbe complainant, in tbe legal proceedings which are sought to be enjoined, has given the bond required by tbe statute to entitle him to retain possession pending an appeal from the judgment against him, (Code, | 3401), does not help out bis case, if tbe facts constituting tbe foundation of bis claim to equitable relief are not sustained. Tbe existence of that bond is not one of tbe facts upon which tbe right of an injunction rests, and tbe circumstance that it was given cuts no figure in the consideration of tbe question of retaining or dissolving tbe injunction?

Affirmed.