Greenwell v. Roberts

Mathews, J., delivered the opinion of the Court. This is a case in which the plaintiffs obtained an injunction to stay proceedings on an order of seizure and sale of certain property, by them mortgaged to one of the defendants. On a hearing of the cause, the injunction was continued until the defendants should release the plaintiffs from a judgment which had been previously obtained against them, at the suit of Rutherford, Fiske & M‘Neil, of Natchez, in discharge of which, a note and the mortgage, on which the order of seizure was issued, had been given to the defendant, A. Haraldson. From the judgment perpetuating the injunction as above stated, the defendants appealed. The grounds on which the injunction was obtained, and those on which it was continued, are want of just consideration, and error in executing the note and hypothecation. The consideration of a note and mortgage and the fact charged that they were executed in error may be inquired into, in an injunction to stay an order of seizure and sale, and if true, this summary proceeding will be declared illegal and the injunctionperpetuated, The evidence shows, that the promise to pay to Haraldson, and mortgage to secure the payment, were" made under a belief that he was authorised to take them, and that they would operate a release and discharge of the judgment which Rutherford, Fiske & M'Neil had obtained against the obligors. No authority is shown on the part of Haraldson, to transact for his clients in the manner in which he has done; no satisfaction was entered on the record in the suit of his clients against the plaintiff, Robert Green well; and until he be discharged from the judgment obtained in that case, neither he nor his wife can be legally considered as under any obligation to fulfil their promise to the defendant. And the summary proceeding on the act of mortgage was illegal, the contract which supports it having been made in error, and without a good or valuable consideration given at the time, on the part of the obligee. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.