Brigham v. White , 44 Iowa 677 ( 1876 )

Adams, J.

i. mtACTioB jn-emeScourt: w1mreaobjebmade. _ I. The petition contains an averment in substance as follows: That the plaintiffs are informed and believe and charge the fact to be that the defendants, Gray and White, have fraudulently combined with each other to defraud the plaintiffs out of their mortgage security; that said Gray placed in the hands of said White the money necessary to pay the judgment against him, with which said White procured an assignment of it to himself, and now holds it without any interest in it and for the benefit of said Gray, and has caused an execution to be issued on it, and unless restrained will sell the said mortgaged property.

The petition is sworn to by one John Lindt, the affidavit being in the following words: “I, John Lindt, having been duly 'sworn, make oath, and say: I am one of the attorneys in the above entitled cause; that I have read the foregoing petition; that I have personal knowledge of the matters and things set forth; that the matters and things set forth in the foregoing petition are true, as I believe.”

It is contended by the appellants that the affidavit is insufficient. They say that the fraud is charged upon information and belief, and that the verification by the attorney is that the same is true as he verily believes, thus charging the fraud upon a belief of a belief. Without stopping to inquire whether the petition and verification are susceptible of this construction, it is sufficient to say that no such objection appears to have been made in the court below. The motion for a dissolution is based upon three different grounds, but this is not one of them, and we think it should be regarded as waived.

2 injuncUenfsatóofr property. II. It is contended that the plaintiffs cannot maintain this action, because their claim has not yet been reduced to a judgment. If they were general creditors this objec^on would be well taken, but having a mortgage ]¡en Up0n the property which defendants are seeking to sell, it is their right, if the judgment has been in fact paid by Gray, by furnishing to White the money with which the assignment was procured, to have the sale restrained provided that a sale would impair their security, and they aver that it would.

In opposition to this view it is urged that until a claim is reduced to judgment there may be some defense to it; that Gray may have some defense to plaintiff’s mortgage, and that while that is possible it would be unjust to allow them to interfere in the sale of the mortgaged property, even though the judgment under which the sale was about to be made had in fact been satisfied. We do not think that this objection is well taken. As to the validity of the mortgage the plaintiffs tender a direct issue in their petition, and make Gray, the mortgagor, a party. Besides, the gravamen of the petition is that defendants, Gray and White, have combined to defraud the plaintiffs out of their mortgage security.

The establishment of such fact involves the establishment of their mortgage and debt.

3.-: fraud. III. All the equities of the petition having been fully denied, it is claimed that the injunction must be dissolved. While this is the general rule there are some exceptions. Where fraud is the gravamen of the petition the injunction should generally be continued to the hearing. Sinnett v. Moles, 38 Iowa, 25; Dent v. Summerlin, 12 Geo., 5.

Affirmed.