Addleman v. Mormon

Sullivan, J.

— This was a bill in chancery by Mormon against Addleman for an injunction. The bill states that Addleman sold and conveyed to Mormon a tract of land in the county of Wayne at and for the sum of 1,200 dollars, to be paid in four equal annual instalments ; that, at the time of the sale, the land was incumbered by a mortgage previously executed by Addleman to one Roderjield, which Addleman then agreed with the complainant should be paid off, and, at the request of Mormon, obtained and delivered to him the bond of one B. W. Addleman in the penalty of 1,500 dollars that the incumbrance should be removed; that the mortgage-money to Roderjield has not been paid; and that he threatens to sell said land; that the land is not more than sufficient to pay the debt to Roderjield; that the defendant is unable to pay his debts ; and that the surety, B. W. Addleman, is insolvent, &c. The bill then states that Addleman had obtained a judgment at law against Mormon for the sum of 300 dollars, that being the amount of the first payment for said land, and threatens execution, &c. The prayer of the bill is, that the defendant may be enjoined from proceeding on said judgment at law, and from the collection of the balance of the purchase-money for said land, until he shall have paid off said mortgage, &c.

J. S. Newman, for the plaintiff. C. II. Test, for the defendant.

At the March term, 1841, the defendant moved the Court to dissolve the injunction which had been granted at a previous term, but the motion was overruled. lie then demurred to the bill, ’ but the demurrer was also overruled, and having failed to answer, the bill was taken as confessed, and a decree was entered according to the prayer of the bill.

This bill does not seek to rescind the contract entered into between the parties. The object of it is rather to enforce it; and it seeks only to restrain the vendor from the collection of the purchase-money until he shall have performed what he bound himself to do. It was, therefore, not necessary that the complainant should tender back to the defendant a deed for the land, nor that he should offer to account for the rents and profits, as is contended by the plaintiff in error.

Notwithstanding the complainant has merits in his case, we think the Court erred in refusing to dissolve the injunction as it respects the judgment at law. The statute requires that no injunction shall be granted to stay proceedings on a judgment at law, unless there be indorsed on the bill a release of all errors in the judgment prayed to be enjoined. The release of errors so to be indorsed is essential to the sufficiency of the bill, and constitutes a part of the record. In this case it does not appear that a release of errors was indorsed on the bill. This should have appeared, and not appearing the decree is -erroneous so far as it enjoins the judgment at law. As to the residue of the purchase-money the decree is right.

Per Curiam.

— That part of the decree which enjoins the • proceedings on the judgment, is reversed, and that part which enjoins the collection of the residue of the purchase-money, is affirmed, &c.