Jeffrey v. Flood

Bryan, J., delivered the opinion of the Court. James Flood, and Mary Ann Flood, his wife, filed a bill in equity against Richard Jeffrey. It was alleged that on or about the twenty-fifth day of July, eighteen hundred and seventy, they mortgaged to Jeffrey a certain tract of land to secure the payment of the sum of eleven hundred and sixty dollars with interest, at the rate of six per cent.-per annum; that they had paid the whole of the mortgage debt with interest, except a small balance which still remained due, and which they were ready and willing at any time to pay. The bill further alleged that Jeffrey declined to receive the balance, and to execute a release of the mortgage, pretending that other and larger sums were still due; and that under a power contained in the mortgage, he had advertised the land for sale by public auction.

The prayer of the bill was that an account might be ⁴⁴ taken of the money clue under the mortgage ; that on payment of the sum found to be due, Jeffrey might be decreed to execute a release; that he might be enjoined from foreclosing the mortgage, or from making sale under the power therein contained; and that the complainants might have general relief. The injunction was granted, with liberty to the defendant to move for the dissolution of it on the usual terms. The answer alleged that nine hundred dollars remained due on the mortgage with interest from the fifteenth day of November, eighteen hundred and seventy-eight, and admitted that the defendant had advertised the land for sale under a power contained in the mortgage. A large amount of testimony was taken, much of which was very contradictory.

The Court continued the injunction until further order, and referred the case to the auditor to state an account of the payments made in respect to the mortgage debt. The auditor reported that the amount loaned on the twenty-fifth of July, eighteen hundred and seventy, was one- thousand dollars; and that this sum with interest had been paid, and the further sum of one hundred and twenty dollars and thirty-six cents in excess of the indebtedness. Exceptions to the report were filed by the defendant, but it was ratified and confirmed by the Court; and afterwards a decree was passed making the injunction perpetual. As we agree with the conclusions from the testimony which the Circuit Court reached, we consider it unnecessary to embody in this opinion a detailed discussion of the questions of fact.

Our decision of these questions could never be available as a precedent in any future case, and the interest in them is confined to the parties to this litigation. We shall, therefore, content ourselves with stating the facts which we consider proved; some of them without contradiction, and others by a ⁴⁵ preponderance of