Walker v. Cockey

Miller, J. delivered the opinion of the Court. This appeal is from an order dissolving an injunction granted to restrain execution of a power of sale contained in a mortgage. The motion to dissolve was heard upon bill, answer and proof. We shall dispose of the ease by considering the several grounds, as alleged in the bill, upon which the injunction or its continuance may be sup ⁷⁸ posed to rest.

Most of these may be dealt with in few words. 1st. The averment that the bond given by the party named in the mortgage to execute the power; was not approved as required by the Code, is denied by the answer and is not supported by any proof in the cause. 2d. The averment that there was usury in the transaction'is not accompanied by payment, or bringing into Court to be paid, the principal sum actually due, with legal interest thereon, which must be done before the mortgagor can., on that ground and in a case like this, invoke the aid of a Court of Equity to stop the sale by injunction. This Court has decided in Powell and Harrison vs. Hopkins et al., ante p. 1, that the exaction of usurious or illegal interest does not 'invalidate the mortgage or affect the power to sell, and that the Court in which the sale is to be satisfied and the proceeds distributed, has full authority and jurisdiction to adjust the .question of interest between the parties. 3d.

The allegation that there was no decree of a Court authorizing a sale of the mortgaged .property, and that a sale without such decree is prohibited by the terms of the Act of 1870, ch. 450, is also unavailing. That law has no application to cases like the present. Its sole purpose and effect is to modify certain sections in Article 16, relating to the jurisdiction of Courts of Equity, and it in no wise refers to or affects sales made pursuant to powers contained in mortgages executed under the provisions of Article 64 of the Code. 4th. The ground chiefly relied on by the appellant is that there has been no default bringing into operation the power to sell.

It is conceded the sale was about to be made because of failure by the mortgagor to comply with his covenant to insure, and, pending the existence of the mortgage, to keep insured the improvements on the mortgaged ground, to the amount of at least one thousand ⁷⁹ dollars, and to cause the policy to be so framed or indorsed as, in case of fire, to inure to the benefit of the mortgagee. This is the concluding part of the mortgage, and it is argued that failure in this respect does not authorize a sale because in a previous part of the deed it is stipulated that until default “in the premises’’ the mortgagor shall remain in possession. A brief examination of the terms of the instrument will enable us to arrive at its true construction. It first states the consideration, the promissory notes, to secure which it was executed.

It then conveys the property to the mortgagee in fee simple with a defeasance clause, which provides that if the mortgagor, his heirs, &c., “shall pay the above mentioned promissory notes when and as they respectively arrive at maturity, ami shall perform all the covenants herein on his part to he performed, then this mortgage shall be void.” Then follows the agreement for possession by the mortgagor, “until default be made in the premises,” the plain meaning of which is that possession is made dependent not alone upon payment of the notes as they mature, but upon that and also upon performance by the mortgagor of all the covenants which the mortgage contains. Performance of all these on