Frazier v. Keller

Robinson, J., delivered the opinion of the Court. The injunction was granted in this case upon the application of the mortgagor to restrain the sale of the mortgaged property, on the ground that the mortgage debt had been paid. It was granted on the llth September, 1869, with leave to the defendant, upon filing an answer, to move for its dissolution. No further proceedings, however, were had in the case till the 30th August, 1881, nearly eighteen years after the issuing of the injunction, when the defendant for the first time filed his answer.

The original bill and exhibits in the meantime had disappeared, and have not been found, and Howard, the mortgagor, had died, having sometime before his death, conveyed the mortgaged property to his daughter, the appellee. Now, under such circumstances as these, in view of the delay and long acquiescence on the part of the defendant in the order granting the injunction, a Court of equity might very well refuse to dissolve it upon the answer of the defendant denying the equities of the bill. The motion to dissolve, however, was not heard upon ⁶⁰ answer only, but upon proof taken oh both sides, and being thus heard upon its merits, it was incumbent on the plaintiff to make out a case entitling him to the equitable interference of the Oourt. So, the question, and sole- question is, whether the mortgage debt has been paid?

And in considering this 'question we cannot overlook the fact that the mortgagee had under a power of sale in the mortgage, advertised the property for sale, and that the sale had been arrested by an injunction granted upon the ground that the mortgage debt had been paid. And in addition to this, although the mortgagee had leave to move for the dissolution of the injunction at any time upon filing an answer, he does not, we find, file an answer for a period of eighteen years, and not until after the "mortgagor had died, and the original papers were lost. Now, if no part of the mortgage debt had been paid,- as the mortgagee now avers in his answer, it seems strange, to say the least, that