Platt v. McClure

WOODBUR.Y, Circuit Justice. Though the plaintiff has an opportunity to give notice of his claim at the sale, it would be no bar to the sale if the defendants choose to proceed and could find bidders. Eden, Inj. 291. The result then would be- new and further litigation with the purchaser, and hence that is to be avoided by a preventive relief, if a proper case is made out. 1G Ves. 2G7. An injunction temporary is sometimes proper, though the answer sets up title in the defendant and denies mistake or fraud. Eden, Inj. 118; Orr v. Littlefield [Case No. 10,590]. Thus, if the mischief in proceeding and disallowing the injunction is otherwise irremediable or incurable. 1 Glyn & J. 122; 4 Dow. 440. Such seems to be the sale in this case, and the expected delay in raising the money, beside the advantages in the meantime anticipated from the rise of the property in value. It may be replied to this in the present case, that the complainant could borrow the money and bid at the sale the full value, and that the excess over the mortgages would belong to him as owner of the equity. Brit the complainant belongs to a distant state, has not been able to visit there and obtain the money since the advertisement issued, and feels obliged to seek relief by longer delay, in a different mode. It seems to me, that on the bill and answer alone, he has made out no case for a permanent injunction. No defect is shown in the notice to sell, which may justify such an injunction against that sale. Drew. Inj. 342; 0 Madd. 10. No fraud is admitted or to be fairly inferred. though some slight presumptions exist of unfairness in Ballinger in keeping his estate in others’ names to some extent. But that is not shown to have been co-operated in by McClure, or to have affected the plaintiff as a creditor so that he can except to it. 2 Johns. 204; Poor v. Carleton [Case No. 11,272]. Nor is ground sufficient shown even for a temporary injunction,— beyond the peculiarity of the case. — showing that his damage may be great and without remedy, unless he is now indulged with time sufficient to return home and obtain the money to buy in the premises at the sale, if postponed. He seems to lay the foundation for that in equity, in the fact of the large nominal consideration he is admitted by the answer to have paid, in the further admitted fact that he was not informed of the peculiar form of this mortgage, giving the respondent? a power to sell, and hence, undoubtedly, purchased under a mistake as to its existence. This he testifies to in express terms, and it is not denied on the other side (though all design to cause a mistake is repelled), in another fact, not noticed at first by myself, that the mortgage containing this power was not recorded, so that he could see its peculiar form when he bought the equity, and in the consequent fact that no special negligence existed in him or his attorney (who was left to close up the business), in not seeing its peculiar form, and in the further fact, well known, that such powers are not customary in many sections of the country, though somewhat usual elsewhere; and, finally, in the fact that their legality has been denied in some places (4 Kent. Comm. 14G, 148, note), and questioned in others, though not for all purposes and at all times void. 1 Pow., Mortg. 9, 10; Comyn, 603; 3 Pick. 483; 2 Metc. [Mass.] 29. Its operation seems equitable only where the land is worth but little more than the debt, and interest has not been punctually paid. It is to be further considered, that this relief may enable him to avoid loss, and have some opportunity to prove fraud, if it existed, so that he can avail himself of it; and the court can prevent the delay from being injurious to the respondent, by requiring, as it has, a bond to be filed to secure the payment of the costs, and another bond to indemnify the defendant for any injury by delay in the depreciation of the property. See, on this practice, Hawes v. James, 1 Wils. Ch. 2; Drew. Inj. 339. As the money market is not straitened at this time, no other injury can happen to the respondent by a short delay. He is conceded to be a man of property; and if obliged, in the meantime, to borrow, could doubtless procure the amount at legal rates and without sacrifices. It is true that mortgagers and their grantees are bound in law to make payment at the day the debt falls due. But, it is equally true, that now not only equity permits a longer time on paying interest, but the law does it under express statutes in probably every state in the Union. It is also true, that the injury by this mistake or fraud, if either were perfected, would be only the trouble of raising the money to redeem the mortgages now instead of three years hence. But that may be very considerable to some men and very little to others; and the plaintiff being a stranger here, and not shown to possess much property, it will probably be so great to him as to justify the allowance of a short 847 time, on the terms and grounds before indicated, to visit his home and procure the money. Let the temporary injunction then issue till the adjourned session of this term, in September next.