Murphy v. McQuade Realty, Inc., 81-255

• Decision Date: 02 April 1982
• Docket Number: No. 81-255,81-255
• Citation: 122 N.H. 314,444 A.2d 530
• Parties: Thomas J. MURPHY, Jr., et al. v. McQUADE REALTY, INC.
• Court: New Hampshire Supreme Court

Page 530

444 A.2d 530

122 N.H. 314

Thomas J. MURPHY, Jr., et al. v. McQUADE REALTY, INC.

No. 81-255.

Supreme Court of New Hampshire.

April 2, 1982.

Findell, Marsh & Keener, Rochester (Allan W. Keener, Rochester, on brief and orally), for plaintiffs.

Gregoire, Calivas, Newman, Morrison & Gray, Dover (Douglas C. Gray, Dover, on brief and orally), for defendant.

KING, Chief Justice.

This is an interlocutory appeal arising out of a real estate transaction which occurred on September 1, 1978. The defendant, McQuade Realty, Inc., by Paul R. McQuade, its president, conveyed to the plaintiffs, Thomas J. Murphy, Jr., and Eileen Murphy, the land and buildings located at 90 Stark Street in Dover, New Hampshire, for a purchase price of $80,000. The plaintiffs executed a promissory note for $80,000 and a first mortgage to McQuade Realty, Inc.

At the time of the conveyance, the property was used as a four-apartment building. The zoning laws for the area where the property was located permitted two-family dwellings, but did not permit four-apartment dwellings. A variance to expand the use of the building to four apartments was granted by the city of Dover's Zoning Board of Adjustment to McQuade Realty, Inc., on August 19, 1976. The variance, however, was held to be improperly granted in Fisher v. City of Dover, 120 N.H. 187, 191, 412 A.2d 1024, 1029 (1980), and a cease-and-desist order was issued against the Murphys on August 7, 1980. On November 10, 1980, the Murphys requested a second variance. The request was denied on November 20, 1980, and that denial has been appealed to the superior court.

On February 4, 1981, the plaintiffs brought a bill in equity for rescission of the real estate conveyance. Claiming that the defendant had intentionally failed to advise the plaintiffs of the pending appeal in Fisher regarding the validity of the original variance, the plaintiffs requested that the note between the parties be cancelled, and that McQuade Realty, Inc. or Paul R. McQuade be required to pay as damages the difference between the outstanding balance of the note and the fair market value which the land and buildings would have had if the Murphys had been able to maintain four apartments.

The plaintiffs' last payment on the promissory note was in January 1981. On February 20, 1981, and on April 17, 1981, McQuade Realty, Inc. commenced two foreclosure proceedings against the Murphys. On April 1, 1981, and on May 4, 1981, the plaintiffs filed petitions for temporary injunctions to prevent the foreclosure sale until the bill in equity for rescission, which was pending in superior court, was decided on the merits. The defendant responded by filing motions to dismiss the requests for injunctions.

On May 26, 1981, a hearing was held in Superior Court (Goode, J.) on the petitions for injunctions. The trial court denied the defendant's motions to dismiss and granted the plaintiffs' petitions for injunctions, thereby enjoining McQuade Realty, Inc., from foreclosing on the property. The defendant appeals from the trial court's decision to grant injunctive relief, and the following two questions are raised in the appeal: (1) whether injunctive relief was necessary to protect the plaintiffs from irreparable harm and (2) whether evidence outside the four corners of the note and mortgage documents can be admitted in determining equitable issues.

We will not reach the second question because the issue and the underlying facts are not properly before the court. The question should be decided by the trial court when the bill in equity for rescission is heard on the merits.

The issuance of injunctions, either temporary or permanent, has long been considered an extraordinary remedy. Timberlane Regional School Dist. v. Timberlane Regional Educ. Ass'n, 114 N.H. 245, 250, 317 A.2d 555, 558...