Searle v. Siravo , 8 R.I. Dec. 176 ( 1932 )

BLODGETT, P. J.

Heard upon demurrer to bill of complaint.

The bill alleges that respondents owned certain real estate in Johnston subject to a first mortgage of $3,000; that in August, 1929, they executed a second mortgage to complainant for $1,200 and gave complainant a note therefor; that complainant never recorded said mortgage and that in October, 1930, the respondent Robert Siravo, acting for himself and the other respondent, requested complainant to allow him to use said second mortgage papers in order that he might take them to the Mortgage Guaranty & Title Co. with reference to obtaining an increase from the Citizens 'Savings Bank upon said first mortgage; that complainant gave him said second mortgage and note; that at the time said respondent took said papers he gave complainant a paper signed by himself which he said would protect her until he restored said documents; that since that time respondent has refused to return said documents; that complainant' has commenced an action at law upon the original mortgage note and needs said original mortgage and note to prove her present action at law.

The prayer is for the return of said documents and for a permanent injunction restraining respondents from destroying same, and from encumbering or disposing of said real estate, and that said note and mortgage’may be deposited in the registry of the Court.

The demurrer is based on the ground that complainant has a complete and adequate remedy at law which she has elected to take.

A court of equity is the appropriate tribunal to order restoration of documents.

21 Corp. Juris 62 — Note (E).

The admitted facts (under demurrer) would require a return of the documents.

Demurrer overruled.