Hines v. Ward
Before: Fleet
Synopsis
Mortgage — Cancellation — Deed from Mobtgagob—Merger—Judgment Lien—Equity.—Where an insolvent mortgagor deeded the premises to the mortgagee in satisfaction of the mortgage, which was canceled by the mortgagee in ignorance of the fact that a judgment had been rendered and docketed against the mortgagor, and in reliance upon the representation of the mortgagor that there was no other lien upon the property, equity will interpose to prevent a merger of the discharged mortgage in the legal title, and the preferring of the lien of the subsequent judgment thereto; and the mortgage, though discharged, will still be upheld and enforced in equity in the interest of the mortgagee for the purpose of security against the intervening lien.
Id.—Presumption Against Merger—Intention of Mortgagee.—It is presumed, as matter of law, that the mortgagee must have intended to keep his mortgage title on foot as a protection against any intervening lien or title, notwithstanding the discharge of the mortgage in ignorance thereof or through inadvertence, and notwithstanding the real intention of the mortgagee to extinguish the mortgage and the notes secured thereby.
Id.—Action to Restrain Sale—Parties—Amendment—Enforcement of Mortgage—Election of Remedy.—The rule is that a party having a right of election between inconsistent remedies cannot pursue both, and, after having elected to pursue one, is debarred and estopped from pursuing another inconsistent remedy, does not apply where an action was brought in equity by the holder of a discharged mortgage, to whom the mortgagor had conveyed the legal title, to restrain a sale under an intervening judgment lien and for general relief, and an amendment was allowed to bring in the mortgagor as a party, and to seek a reinstatement, and enforcement of the mortgage lien as against the judgment lien. The only obstacle under the original complaint to the relief awarded under the amended complaint xvas the failure to make the mortgagor a party defendant, and that defect was susceptible of being cured by amendment, which it was in the discretion of the court to allow, and thereupon the original complaint was superseded for all purposes.
Id.—Order Dissolving Injunction—Bill of Exceptions.—The fact that subsequent to the amendment of the complaint the plaintiff presented a bill of exceptions to the order dissolving the injunction issued upon the original complaint, for the purpose of an appeal therefrom, does not imply an election or intention to abide by the attitude' assumed in the original complaint; but such intention is negatived by amending the complaint and proceeding to judgment thereon.
' Id.—Amendment of Complaint—Change in Chabacteb of Relief.—Though the amendment of the complaint worked a change in some respects in the character and extent of the relief which could be awarded thereunder, it was not in any just sense a discontinuance or abandonment of the action as originally brought.
VAN FLEET, J. Plaintiff held a mortgage, given and recorded in June, 1890, on land of defendant Tunison to secure the latter’s note, on which there was due in May, 1894, the sum of fifteen hundred dollars. Being insolvent and unable to pay the note, and desiring to avoid the expense of foreclosure and sale, Tunison requested plaintiff to take a deed, of the mortgaged premises in satisfaction of the debt, representing to plaintiff and assuring him that there was no other encumbrance or lien upon the land. Plaintiff, believing and relying upon Tunison’s representations, consented, without an examination of the record, to accept such deed, and thereupon on May 19, 1894, Tunison and wife made and executed to plaintiff a deed of the premises, which the latter took, and in consideration thereof surrendered and canceled the note and satisfied the mortgage and placed his deed of record.
In fact, the defendant Bichter had in March, 1894, without plaintiff’s knowledge, hut with the knowledge of Tunison, re* [117]•covered a judgment against the latter in the superior court of the county, which judgment appeared of record as having been entered and docketed on the 27th of that month; and in August, .1894, Richter caused an execution based upon said judgment to be levied upon the land by the defendant Ward, as sheriff of the county, who advertised the land for sale thereunder.
The existence of this judgment and the proceedings taken ■thereunder being thus brought to the knowledge of the plaintiff, he commenced this action. In the complaint as originally filed Richter and Ward, the sheriff, were alone made parties defendant, the complaint alleging the facts as above stated, and also setting out the facts as to the manner in which Richter’s judgment had been procured and docketed and praying for a perpetual injunction restraining the sale and for general equitable relief. Upon the complaint as thus framed a temporary injunction restraining the sale was granted; but subsequently the court below sustained a demurrer to the complaint and dissolved tne 'injunction, but with leave to plaintiff to amend.
Plaintiff thereupon filed an amended complaint, adding and bringing in Tunison as a party defendant, and, alleging otherwise substantially the same facts stated in his original complaint, asked that the satisfaction of said mortgage be canceled and set aside, that plaintiff be restored to his rights thereunder, and that the mortgage be foreclosed and the land sold in satisfaction of the indebtedness. The complaint also alleged that the land, at the time of its conveyance to plaintiff, was of no greater value than the amount due on the note, and that plaintiff was ready and willing to reconvey the land to Tunison.
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