The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1864-06-24
Recent Decision OF Cases In the
Supreme Court.
Ovid Pinney. Respondent. VS.. Abram NJ. Frid-
ley, Appellant.


| Icy, AppcllauC.
| SYLLABUS.
| The plaintiff brought an action to recover
| the possession of real estate. The complaint
| the owner in fee of the land. That he executed
mortgage of the same to the plaintiff. The
| complaint then states such steps separately
| and particularly of q foreclosure of the mort
| gage by advertisement, the purchase of the
land by the plaintiff at the sale, and the expira-
ton of the period of redemption without the
| land being redeemed, and adds that under and
by virtue of said mortgage and foreclosure
thereof as aforesaid, the plaintiff is seized in
fee simple of the said premises" &c. Held,
On demurrer to the complaint that the failure
to a!lege that the mortgage contained power
of sale was fatal to the suficiency of the plead
ing where q n,ead;os sets on. al, the fact. ,v
which party has attempted to acquire title to
land, and they are insufficient, general allie
cation of ownership dependent on such facts
will not supply the defects. although such al
legation would have been sufficient averment
of title in the absence of the particular facts.
Where q pleading sets out each successive
step taken in the progress of the foreclosure of
mortgage by advertisement, but fails to state
one fact necessary to the validity of the fore
closure. subsequent allegation that the mort
gage was duly fOreclOsed, will not supply the
defect, although such general allegation of
foreclosure would have been sufficient in the
absence of the special facts.
Where general fact or result such as own
ership of land. or the foreclosure of mortgage
is pleaded, and also the special facts by which
such result is reached, and the facts do not
support the result, the facts will control.
John s. Merriam, Plaintiff in Error VS.. Daniel
A. j. Baker Defendant in Error.
SYLLABUS.
II q court, where an action is commenced,
has authority to try and determine actions of
that class or character such actions within
the meaning of the plea of "another action
pending" may be considered as depending
therein, Notwithstanding the existence of q
question as to whether said court acquired
jurisdiction of the parties or the particular
case, so long as such question remains undo
cided, and until such court decides against its
Jurisdiction in that case.
John r. Franklin, ct al, Respondents, We.
John b. Warden, ct al, Appellees.
SYLLABUS.
judgment was recovered in this State
against principals and surety, and real estate
of the latter sold to the Judgment creditors
sufficient to satisfy the judgment in full.
Prior to this sale a transcript was taken to
Wisconsin, q judgment recorded thereon,
which was also satisfied in full by sale of the
property of one of the principals, which was
also struck off to the judgment creditors at the
instance of the attorney in action, but not un-
till some time after the sale in this State. In
an action by mortgage of the lands sold in
this State, against all the parties to the judy
ment, to have the sale thereof set aside and
the land relieved from the lien of the judg-
ment: Held. that the sale last in point of time
was the only one which could be set aside on
the ground that the debt had previously been
satisfied, that as the judgment in Wisconsin
was obtained, and3the whole proceedings there
on including the sale were without the knowl-
edge or consent Ofthe parties plaintiff therein
they ought not to be bound or prejudiced by
said Judgment or proceedings. That the at
torneys employed generally to obtain the
judgment in this State would not have been
authorized to institute the proceedings in Wis
consin nor to employ attorneys SO to do;
nor to empower attorneys SO employed to bid
Oft in the name of the judgment creditors the
real estate sold on execution.
Francis z. Asher, Respondent VS.. Albert
Baze, Appellant. 4,
SYLLABUS
Under the laws in force here in 1850 a cred
itOr might levy an attachment upon the per-
sOnal or real property of his debtor, notwith-
standing previous fraudulent assignment or
conveyance; and where real estate is so levied
upon, the creditor secured a lien thereon from
the time of filing and recording the writ and
return as required Oy the statute.
Such record was notice to all the world of
the claim and lien of the attaching creditor,
and thereafter any person purchasing the lands
of the alleged fraudulent grantee took, subject
to all the equities which could be enforced
against the Litter.
Daniel E. Montgomery, Respondent VS.. VIM.
MsEwen, Appellant.
The plaintiff commenced an action to set
aside and discharge a mortgage executed by
him to defendant, on the ground that he had
satisfied and performed the conditions upon
which it was given.
The defendant answered, putting in issue the
allegations of the complaint. but did not ask
affirmative relief Pending this action, the
defendant proceeded to fOreclose his mortgage
by advertisement. The plaintiff, upon petition
setting up these facts, obtained an injunction
restraining the foreclosure. Held, That
mortgage, by statute, has two remedies or
methods OF foreclosing his mortgage, and that
M tne action commenced against him to dis
charge the mortgage, he could not be CON-
Pelled 10 ask affirmative relief (viZ. the fore
closure OF his mortgage) or be barred from
IoTeclosing the same by advertisement.
IN oraei 10 authorize the issuance offs writ
Vi inJunction, party must show that it is nec-
essary Tor the protection of rights which are
clear or Beyond reasonable doubt, that without
1t he Will suffer irreparable or great injury, or
that he Is entitled to more Immediate relief
IMAM can oe oo'aned by the ordinary Of
petition or affidavit, which establish smch ale
cations, and it IL not sufficient that the peti-
TONER states them as an opinion or Conclusion
of his own mind on the subject.
Jane Tullis by her next friend Morris Lamnr.v
Appellant against Abram M. Fridley. r..
spondent. ..
A gift of q promissory note from husband
to his wife, directly. and without the interyen-
ton of trustees, although nullity at law. win
be recognized and enforced in equity as against
the maker of the note, and the husband where
the rights of creditors are not prejpdiced
thereby.