Gayle v. Fattle

LeGuaistd, C. J., delivered the opinion of this court. This is an appeal from an order granting an injunction. Under the decisions of this court we are confined to the case made by the bill, which may be thus stated: On the 21st day of February 1853, the appellee purchased from the appellant, Charlotte Gayle, (then Tipton,) the land mentioned in the proceedings, and paid a part of the purchase money, taking from the vendor a receipt for the same, which, after acknowledging the payment made, proceeds to declare, that the title to the farm shall “be clear of all incumbrance of every nature and kind whatsoever. ’ ’ [84] Subsequently a deed was made to the appellee for the land, and a mortgage executed by him under the Act of 1826, ch. 192, to secure the amount of the remainder of the purchase money when it should become due and payable. The deed did not contain a covenant of general warranty of title against all the world. The mortgage being due, the sale authorized by it,, in that event, being about to be proceeded in, the bill in this case was filed to enjoin such sale until such time as an ejectment suit, instituted by one Chamberlain, for the land, should be determined, and for reformation of the deed so as to make it conform to the terms of the receipt given by the appellant, Charlotte, at the time of the sale. There is no allegation of fraud against the appellants, the assent of the appellee to the deed, as it was executed, being, as is averred, “through inadvertence and ignorance, he being a German and not readily understanding the English tongue.” Nor is there any averment that the claim set up by Chamberlain, in the action of ejectment, is valid and subsisting, the charge being, that by the action of ejectment the title of the appellee is “clouded.” It must be recollected, that the sale sought to be enjoined is under the Act of 1826, ch. 192, the eighth section of which provides, that no injunction shall be granted to stay any sale, or any proceedings after any sale authorized by the Act, unless under peculiar circumstances, none of which are specified in the bill of complaint. The part of the section bearing on this subject is in these words: “No injunction shall be granted to stay any sale, or any proceedings after sale, authorized by this Act, unless the party praying such injunction shall be also a party to the deed of mortgage, in virtue or pursuance of which the property, interest or estate, sold, or offered for sale, shall have been mortgaged, or shall claim under such party a right, title or interest, in or to such mortgaged premises, derived and accruing after the time of recording such mortgaged deed; nor unless such party shall, on oath or affirmation, allege, that the mortgage debt, and all interest due thereon, has been fully paid, or that some part of such debt or interest, the amount of which he shall state, has been paid, and that the [85] mortgagee, or person acting under him or her, refuses to give or allow credit for such amount, or that some fraud, which shall be particularly stated in the bill or petition for injunction, toas used by such mortgagee, or with his knowledge, in obtaining the deed of mortgage." This quotation from the Act would seem to be conclusive of this case. But, if it were not, it is clear to us, that, on other grounds, the averments of the bill are insufficient to justify the injunction. We waive all inquiry in regard to some of the questions discussed by the respective counsel, particularly those which relate to the alleged merger of the words in the receipt by those contained in the deed, and the right, if any, of the appellee, to have the deed so reformed as to make it conform to the title stipulated for by the receipt of the 21st of February 1853. It will be time enough hereafter to consider them. Admitting, ex argumenti, the efficacy of the pretensions of the appellee in these particulars, the question arises, ought an injunction t.o issue simply because a stranger has thought proper to institute an action of ejectment, there being no allegation that his claim has any validity whatever? We think clearly not. It is useless to go over in detail the many cases on this subject. We content ourselves with a reference to Miller vs. Avery, 2 Barbour's Ch. Rep., 594, a case conclusive of this, and now everywhere in this country acquiesced in. There, Chancellor Walworth, in alluding to the decision in Johnson vs. Gere, 2 Johns. Ch. Rep., 546, says: “I think it evident that the reporter was under a mistake in the statement of the case, for it cannot be possible that he intended to decide that a mere claim of a paramount title, by a third person, and the bringing of a suit upon that claim against the purchaser was sufficient to authorize the court to stay the vendor, who had warranted the title, from proceeding at law or in equity to collect the unpaid purchase money. If the law was so, any vendee, who was not ready to pay his purchase money when it became due, might make a secret arrangement with some third person to claim the premises and bring an ejectment suit therefor, and thus tie up the vendor from collecting indefinitely." The good sense expressed [86] in this language is too obvious to need enforcement; it is commended by Chancellor Kent in his Commentaries, although he delivered the opinion in Johnson vs. Gere, aud has been recognized and adhered to in a great number of subsequent decisions. (Decided July 1st, 1859.) If the sale be made without a compliance with the requisitions of the Act of 1826, ch. 192, when it shall have been reported, the appellee will then have an opportunity to point out the departure and to claim whatever advantage it will give him. Order reversed, with costs, and cause remanded for further proceedings under Act of 1832, ch. 302.