Osburn v. Andre , 58 Miss. 609 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

Mrs. Osburn alleged by her bill that she had become the owner of a plantation known as “ Woodburn,” formerly the property of one Moncure ; that defendant, Andre, held a trust-deed on the land prior in time to the judgment under which she purchased, and that he was about to foreclose his trust-deed by a sale. She alleged, further, that there was embraced in Andre’s trust-deed a lot of valuable personal properly, and that while the sum secured by it was nominally $3,300, she had reason to believe, and charged that in fact there was but little due. She prayed for a temporary injunction restraining Andre from making sale under his trust-deed until the amount due him could be ascertained, and further, fora discovery from him as to said amount, and that he might be compelled to first sell the personal property and credit the proceeds on the debt held by him, in order that she might be permitted to redeem the land by paying the balance left due. A temporary injunction restraining the sale, both of the personalty and realty, was granted. Andre answered the bill, substantially admitting its allegations (so for as the merits of this appeal are concerned), and stating, in response to the prayer for discovery, that the .amount due him was $1,900. After answer filed, he moved for a dissolution of the injunction, which motion was by the chancellor sustained as to the personalty, but overruled as to the realty'; the effect of which was to permit him to make sale of the personalty, but to continue the injunction in force as to the realty. Mrs. Osburn, feeling aggrieved at this partial dissolution of her injunction, appealed from this order, executing a supersedeas-bond for that purpose. Thereupon Andre renewed his motion for an entire dissolution of the injunction, so as to be permitted to proceed with a sale of the land; which motion was sustained and the injunction wholly dissolved. From this order also Mrs. Osburu appealed, and both appeals are before us to be heard together.

The action of the chancellor was correct throughout. Mrs. Osburu had no lien upon, or connection with the personal property. The utmost right she had in reference to it was to demand that a sale of it should precede a sale of the land, so that the proceeds arising from it should be credited upon the mortgage debt. Such should have been the scope of the original injunction, and this was the effect of the first order dissolving the injunction as to a sale of the personalty. But the complainant, by superseding this order, prevented the doing of all that she was entitled to demand, and obstructed the very relief that she had prayed. She was entitled to restrain the sale of the land for two purposes only, namely: to obtain discovery as to the amount due, and to have a precedent sale of the personalty. She had obtained the discovery by the answer of the defendant, whom she had made a witness for that purpose, and she rejected the other relief by superseding the order which granted it to her. Nothing remained for the chancellor but to permit a sale of the realty.

Both sales must now proceed, and complainant must rely, at the final hearing,,upon showing that the true amount due is' less than that stated by the defendant, and ask that equity be done in the final decree. If she prefers it, she can by supplemental bill enjoin the trustee from paying over the proceeds of the sale of the land until this shall have been done.

Decree affirmed.