Armstrong v. Sanford

• Decision Date: 01 January 1862
• Citation: 7 Minn. 34
• Parties: GEORGE W. ARMSTRONG vs. DAVID SANFORD.
• Court: Minnesota Supreme Court

7 Minn. 34

GEORGE W. ARMSTRONG vs. DAVID SANFORD.

Supreme Court of Minnesota.

Appeal from order of the district court, Ramsey County.

Points and authorities for appellant: —

1. The amount claimed to be due in the notice of sale was too great, and an injunction was the only and proper remedy. Bidwell v. Whitney, 4 Minn. [76].

2. The threatened sale without any right of redemption was unauthorized as against the appellant, and would put a cloud upon his title, which an injunction was the

proper remedy against. Comp. Stat. 646; Sess. Laws, 1860, p. 275.

3. The alleged waiver of the right of redemption was a nullity as against any party having such right other than the mortgagor, because the mortgagor could only waive his own personal right; and even as against him, in this case, it was void for want of consideration. Sess. Laws, 1860, p. 275.

4. Under the statute authorizing a waiver of redemption, only the two years which by that statute were added to the one year previously given, can be waived. Laws of 1860, p. 275.

Points and authorities for respondent: —

1. The injunction was properly dissolved, because the complaint contained no cause of action. The allegation that plaintiff "believes the note for $48 to have been given without consideration," is not sufficient. An injunction will not be allowed on mere "information and belief." Willard Eq. Jur. 342; Campbell v. Morrison, 7 Paige, 160; Bank of Orleans v. Skinner, 9 Paige, 305; Goodyear v. Bloodgood, 1 Barb. Ch. 617; Livingston v. Bank of New York, 26 Barb. 304; Roome v. Webb, 1 Code R. 114; Roome v. Webb, 3 How. Pr. R. 327; Pomeroy v. Hindmarsh, 5 How. Pr. R. 437; Rateau v. Bernard, 12 How. Pr. R. 464, and authorities collated; Crocker v. Baker, 3 Abb. Pr. R. 182.

2. The answer of the defendant to the complaint is duly verified, and "denies and puts in issue all the equities of the plaintiff's complaint." Moss v. Pettingill et al. 3 Minn. [217], and authorities there cited; Gould & Palmer v. Jacobsohn et al. 18 How. Pr. R. 158; Finnegan v. Lee et al. 18 How. Pr. R. 186.

Masterson & Simons, for appellant.

David Sanford, in person, and D. Newell, for respondent.

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 $848, and interest.

The plaintiff alleges two principal causes of action, constituting the grounds upon which the injunction was issued: First, 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. Second, 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 amount 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 v. Morrison, 7 Paige, 160; Bank of Orleans v. Skinner, 9 Paige, 305; 1 Barb. Ch. 671; 1 Code R. 114; 3 How. Pr. R. 327; 5 How. Pr. R. 437; 12 How. Pr. R. 464; 3 Abb. Pr. R. 182. 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 v. 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 them free from the right of redemption, then the injunction of course 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...