Hart v. Marshall

Emmett, C. J. By the Court. In the case of Goodrich vs. Moore, 1 Min. Rep. 61, we held that courts ought not to interfere by injunction except in cases where irreparable injury would otherwise be done to the parties, or they show themselves entitled to more immediate relief than can be obtained [297] by the ordinary course of proceedings. The late Supreme Court of the Territory of Minnesota, in the case of Steele vs. Taylor, et al., 1 Minn. Rep. 274, also decided that in the sale of real estate upon execution pendente lite, the purchase is voluntary, and the purchaser takes his title subject to the Us pendens. The principles recognized by these decisions are sufficient for the determination of the present case. The Plaintiff is in the possession of certain real estate, claiming title through one William H. Randall. Hart, one of the Defendants, recovered a judgment against Randall in September, 18§0, and has levied upon this property. The Plaintiff, claiming that this judgment is not a lien upon the property in question, and that it is void for reasons apparent upon the record, commenced this action to Set it aside, and at the same time asked for and obtained an injunction restraining the sale. We are at a loss to see how a sale of the property, upon execution, would, under such circumstances, work irreparable injury to the Plaintiff, especially as the purchaser would take it subject to the rights of the Plaintiff. To interfere by injunction in advance of a decision upon the merits, results in this action in delaying the sale until the ten years limited by statute shall have expired since the rendition of the judgment, and imposes upon the judgment creditor alone all the risk of such delay; while the rights of the Plaintiff, though they might be somewhat complicated by a sale, should the judgment be afterwards set aside, or declared not to be a lien, would suffer no material injury thereby. We think the court should have dissolved the injunction, and therefore reverse the order refusing so to do, and order the injunction dissolved. The merits of the action were also elaborately discussed on the hearing, but as the Defendants did so under protest, and as they are not necessarily involved in the consideration of the order appealed from, we have declined to pass upon them..