Armstrong v. Sanford

By the Court Atwater, J. Appeal from an order dissolving an injunction. The action was brought by Appellant to restrain Sanford from foreclosing a mortgage given upon certain premises, which were purchased by Armstrong after the execution and record of the mortgage. The mortgage was given by one Grey to Respondent, to secure the payment of two notes for the sum of $818, and interest. The Plaintiff alleges two principal causes of action, constituting the grounds upon which the injunction was issued : 1st, That the mortgagee, in his notice of sale, claimed, and was about to sell the premises, for a greater amount than was actually and legally due upon the notes, the excess alleged being some seventy dollars. [52] 2d, That the mortgagee was about to sell said premises absolutely, and to give the purchaser a full title without right of redemption. Upon the first ground the injunction could not be sustained. There was not a sufficient statement in the complaint with reference to the amout due upon the mortgage, to authorize the issuing of the injunction in the first instance. The Plaintiff states upon his belief only, that the note for $48.00 mentioned in the mortgage, was given by Grey without consideration. It has been repeatedly held, that an injunction will not be issued upon facts stated on information and belief only. Campbell vs. Morrison, 7 Paige, 160, Bank of Orleans vs. Skinner, 9 Paige, 305; 1 Barb. Ch. R., 167; 1 Code R., 114; 3 How., 327; 5 How., 439; 12 How., 462; 3 Abb. Pr. R., 183. In this case the Plaintiff does not even state that he has any information of the truth of the fact alleged, but bases it solely •upon his belief. There is also another good reason for the dissolution of the injunction, so far as the first ground is concerned. The answer positively and fully denies the statement, that the note was without consideration. In such case the injunction should be dissolved. Moss vs. Pettingill et al., 3 Minn., 217. With regard to the second ground, we think also, the injunction was properly dissolved. The answer does not deny that the Defendant was about to sell the property and give full title to the purchaser, without right of redemption. The answer alleges, that the said Grey undertook and agreed for himself, his heirs and assigns, in said indenture of mortgage, in case of default in the condition thereof, that said lands &c., should be sold under and by virtue of said mortgage, without the benefit or right of redemption to said land or any part thereof, and that said sale should be absolute from the date thereof. We do not think the right to the writ of injunction in this case depends upon the validity of this agreement waiving the right of redemption, whether with reference to its application to the party signing it, or those claiming under or through him. It is not claimed that the Defendant had no right to sell the premises in any form. If he had the right to sell [53] them, free from the right of redemption, then the injunction of cotirse, could not be sustained. If he had not such right, he could not acquire it, either by the sale itself, or the notice claiming to sell in such manner. If the mortgagee, in a sale under a mortgage, should claim to sell, and actually sell the farm of a third party, in no manner connected with ‘the mortgage, 'the sale of such farm would be absolutely void, as would be apparent upon the face thereof, and would cast no cloud upon the title of such party. And I think the same rule must apply, where the-mortgagee under a mortgage sale, purported to sell an interest of the mortgagor, not conveyed by the terms of the mortgage. The sale (as to such interest) would be simply void, and the purchaser could claim no rights, by virtue of his purchase under such sale. If it can be said to cast a cloud upon the Plaintiff’s title in any manner, the injury is not of that kind that a writ of injunction should be granted to restrain. The right of the purchaser, if any he has, must be asserted under the provisions of the mortgage, which is matter of record. If the instrument evidencing the purchase of this right of redemptibn was not on its face void? as to such right, the Plaintiff would always have the evidence at command to show its invalidity, since it would be matter of record. If the right of redemption has not been waived or conveyed, as against the Plaintiff, he' could always interpose that fact as a defence in any action by the purchaser to recover possession of the premises, on the ground that the sale was absolute. Admitting therefore that Grey could not waive or has not waived his right of redemption, either in regard to himself, or his creditors or assigns, we see no ground for interference by writ of injunction to prevent the sale. Weller vs. The City of St. Paul, 5 Minn., 95. The Counsel for the Appellant has elaborately argued one point, which, in the view above expressed, is not necessary to be decided in order to the determination of this appeal, but upon which the opinion of the Court is desired, and we will therefore consider the same at this time. It is claimed by the Appellant, that, although the mortgagor may waive his right of redemption, yet he cannot do so for his creditors, assigns, or any other party who would enjoy such right under the [54] statute, but for the waiver. In other words, that the statute, (,Session Laws of 1860, page 276, section 3,) which provides that “any person may, in writing, &c., waive his right of redemption as allowed by this act,” means that every person who is entitled by the statute to redeem, must personally and expressly waive'his right to cut him off therefrom. In this case the whole interest of the Plaintiff in the premises accrued after the execution of the mortgage to Defendant, and we will consider the point only with reference to such case. It will not be questioned but that the owner oí an unincum-bered fee in lands, may, by due form of law, dispose of the same as he sees fit — either absolutely or conditionally, in whole or in part.. In conveying the same by mortgage (in the ordinary form), the grant in terms is absolute, conveying all the right, title and interest of the mortgagor in the premises,'subject however to a defeasance on payment of the sum secured. But when default has occurred, and a sale takes place, the mortgagor has nothing left in the premises, save what the law grants him as a privilege, to-wit, the right of redemption within a specified time. This right or privilege is of more or less value to the party possessing it, and there can be no good reason assigned why it should not be the subject of sale, the same as any other interest in land, whether acquired by purchase, inheritance, by operation oí law, or otherwise. The right of redemption is a certain interest which the law gives the mortgagor, but as he might dispose of the whole fee by deed, so that no person could thereafter acquire an interest in the premises, so may he, at the time of giving the mortgage, dispose of this right of redemption. And when he has done this, and default occurs, his whole interest in the estate is gone, as much as by the execution of a warranty deed. Pie can neither claim the right of redemption himself in the premises, nor can a second mortgagor, judgment creditor or assignee of the mortgagor, (who have become such, subsequent to the conveyance of the right of redemption,) claim the same, for there was no interest remaining in the mortgagor to which such right could attach. The Plaintiff in this case is an assignee of the mortgagor, but he could take no more by his purchase or assignment than the [55] assignor bimself bad. And as tlie mortgagee had purchased the entire interest in the premises mortgaged, the assignee could not, by taking a conveyance from the mortgagor, bring himself within the class entitled to redeem, on the ground that he claimed through the mortgagor, since he took nothing by the conveyance, at least not the right to redeem, as the mortgagor had no such right at the time of the assignment, and consequently could not confer it upon another. The proposition may therefore be true, as stated by counsel for Appellants, that each person must waive the right for himself, but the effect of the waiver in this case by the assignor of the Plaintiff, leaves no right of the kind in the latter, to be either asserted or waived. What would be the effect of a waiver or attempted waiver, after liens had attached to the estate, it is unnecessary here to inquire. We do not propose to decide in this case whether the mortgagor has properly and effectually waived his right of redemption, as it is unnecessary upon this appeal, and we have not all the requisite facts before us to find on that question. It is only intended to intimate our view of the effect upon the Plaintiff’s claim, in case it is found that such waiver has been duly made and executed before any interest was, or is claimed to have been acquired- by Plaintiff. The order dissolving the injunction is affirmed.