Hodge v. McMahan , 137 Ala. 171 ( 1902 )

SHARPE, J.

In general where one holds in hostility to another a writing which on .its face imports a valid obligation, but which is invalid by reason of extrinsic facts the evidence of which is in danger of being lost by delay in the assertion of claims, a court of equity will interfere to prevent, what might otherwise prove irreparable .injustice, by cancelling the writing. — Smith v. Pearson, 24 Ala. 355; Merritt v. Ehrman, 116 Ala. 278; Story’s Eq. Jur., § 700; Field v. Holbrook, 14 How. Pr. (N. Y.) 103.

In such case the jurisdiction is not declined because the infirmity of the instrument is such as could be availed of in a suit at law, for the power to bring, or postpone such suit is usually with the party holding the instrument, and without equitable relief the other party would be subject to menace for a time indefinite and possibly until he is disabled by circumstances from effectually contesting.

In this case it appears from the bill'that defendants have taken steps to obtain possession of complainant’s property under the power contained in the alleged mortgage hut that proceeding will not necessary culminate in a suit tvherein complainant could he freed from embarrassment and apparent, liability on the note, mortgage and bondl held against him by defendants. Assuming that as alleged in the bill the consideration for the note and mortgage has Avholly failed, complainant was under no real obligation to surrender the, mortgaged property, and the bond given by him to lurve the property forthcoming at the sale Avas without consideration.

The bill states a case proper for relief under the principle to Avliich Ave haAre referred, and Avas not subject to the. demurrer. TO' the end of settling the whole controversy in the chancery court of preventing interference Avith the mortgaged property until the case is heard on its merits or on the coming in of the answer, the motion to dissolve, the injuction should have been overruled.

The decree sustaining the demurrer and the decree dissol vin g the injunction Avill be reversed and the cause will be remanded. An order Avill here he entered reinstating the injunction.

Reversed and remanded.