Gayle v. Fattle

LeGuaistd, C. J., delivered the opinion of this court. This is an appeal from an order granting an injunction. Under the decisions of this court we are confined to the case made by the bill, which may be thus stated: On the 21st day of February 1853, the appellee purchased from the appellant, Charlotte Gayle, (then Tipton,) the land mentioned in the proceedings, and paid a part of the purchase money, taking from the vendor a receipt for the same, which, after acknowledging the payment made, proceeds to declare, that the title to the farm shall “be clear of all incumbrance of every nature and kind whatsoever. ’ ’ ⁸⁴ Subsequently a deed was made to the appellee for the land, and a mortgage executed by him under the Act of 1826, ch. 192, to secure the amount of the remainder of the purchase money when it should become due and payable. The deed did not contain a covenant of general warranty of title against all the world.

The mortgage being due, the sale authorized by it,, in that event, being about to be proceeded in, the bill in this case was filed to enjoin such sale until such time as an ejectment suit, instituted by one Chamberlain, for the land, should be determined, and for reformation of the deed so as to make it conform to the terms of the receipt given by the appellant, Charlotte, at the time of the sale. There is no allegation of fraud against the appellants, the assent of the appellee to the deed, as it was executed, being, as is averred, “through inadvertence and ignorance, he being a German and not readily understanding the English tongue.” Nor is there any averment that the claim set up by Chamberlain, in the action of ejectment, is valid and subsisting, the charge being, that by the action of ejectment the title of the appellee is “clouded.” It must be recollected, that the sale sought to be enjoined is under the Act of 1826, ch. 192, the eighth section of which provides, that no injunction shall be granted to stay any sale, or any proceedings after any sale authorized by the Act, unless under peculiar circumstances, none of which are specified in the bill of complaint. The part of the section bearing on this subject is in these words: “No injunction shall be granted to stay any sale, or any proceedings after sale, authorized by this Act, unless the party praying such injunction shall be also a party to the deed of mortgage, in virtue or pursuance of which the property, interest or estate, sold, or offered for sale, shall have been mortgaged, or shall claim under such party a right, title or interest, in or to such mortgaged premises, derived and accruing after the time of recording such mortgaged deed; nor unless such party shall, on oath or affirmation, allege, that the mortgage debt, and all interest due thereon, has been fully paid, or that some part of such debt or interest, the amount of which he shall state, has been paid, and that