Rynearson v. Fredenberg
| Decision Date | 13 January 1880 |
| Citation | 42 Mich. 412,4 N.W. 187 |
| Court | Michigan Supreme Court |
| Parties | PETER L. RYNEARSON v. SYLVESTER FREDENBERG. |
On proceedings for the foreclosure of a mortgage upon certain mill property, on allegations of use thereof, impairing the value, an injunction was granted restraining mortgagors from such use. Whereupon, by consent, a bond was given conditioned for the payment of the amount of any decree secured by the obligees therein, and an order entered dissolving the injunction on the giving of such bond. A decree was rendered for a certain sum, appeal taken, amount reduced, and judgment entered in the court below for amount so modified, sale made, and deficiency left after sale. Held that obligors in such bond were liable for such deficiency and action thereon might be brought by administrator of obligee, though it did not run to representatives, and that it was not superseded by the appeal bond.
Error to Kalamazoo.
Dallas Bondeman, for plaintiff in error.
Edwards & Sherwood, for defendant in error.
Benjamin Atwood conveyed by warranty deed to Jesse Turner certain premises upon which there was a water-power, a saw and grist-mill, and received back a mortgage thereon to secure the purchase price thereof. He afterwards commenced proceedings in chancery for the foreclosure of this mortgage and upon certain charges made in the bill, as to the manner in which the property was being used to the impairment of his security, obtained an injunction restraining the defendants from the use and occupation of said mill.
On the third day of December following, the defendants in said cause, with Rynearson and others, executed a bond, being the one sued upon and here in question, to the complainant, his heirs and assigns, in the sum of $5,000, reciting therein the pendency of such foreclosure proceedings, and the issuing of said injunction, and reciting that "the said Atwood agrees to consent to the dissolution of said injunction, and to the use and operation of said mill and premises in the same manner as before said injunction, by said Turners, upon delivery to him of this bond." The condition of the bond was that if the obligors should pay Atwood the amount of any decree he might recover in such chancery suit, the bond should be void.
On the twelfth day of December an order was entered in said chancery case, in open court, reciting that a motion was made to dissolve the injunction, based upon an answer and certain affidavits, together with this bond, and the counsel for the respective parties being present and consenting it was ordered that on delivery of this bond the injunction be dissolved.
A decree was afterwards obtained by the complainant, the defendants Turner appealed, and in this court the amount of the decree was very materially reduced, and the cause remanded to the court below, where a decree was entered in conformity with the order of this court. Under this decree the mortgaged premises were sold for a sum less than the amount of the decree, and the administrator of Atwood afterwards brought an action upon this bond to recover the deficiency, and recovered a judgment. Rynearson assigns error.
It has been urged that there was no evidence that the bond was ever delivered or that Atwood consented to the dissolution; that the bond was not one required either by the practice of the court or by statute, and that it could not be considered a voluntary common law bond; that the court must have dissolved the injunction or refused so to do, irrespective of this bond, and could not grant an order dissolving the injunction on delivery of this bond.
No question is made but that the injunction...
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