Opinion
8 Div. 169
June 26, 1930. Rehearing Denied October 23, 1930.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
S. A. Lynne, of Decatur, for appellants.
The complainant, being in possession and admitting an indebtedness, was not entitled to an injunction without first having offered to deliver possession or made a tender of the amount admitted to be due. Williams v. Troy, 39 Ala. 118; Zavelo v. Goldstein, 178 Ala. 321, 59 So. 618; Bowdoin v. Bedsole, 199 Ala. 648, 75 So. 167. Equity will act to prevent a sale more readily than to set it aside after made. The power in the mortgage for its foreclosure will not be lightly interfered with. Anderson v. White, 2 App. D.C. 408; 41 C. J. 930, 934; Ballenger v. Price, 219 Ala. 412, 122 So. 628; Caldwell v. Caldwell, 166 Ala. 406, 52 So. 323, 139 Am. St. Rep. 48.
E. W. Godbey, of Decatur, for appellee.
A tender was not necessary; a vain and useless thing is not required. Forbes v. Hall, 102 Ga. 47, 38 S.E. 915, 66 Am. St. Rep. 154; Root v. Johnson, 99 Ala. 90, 10 So. 293; Evans Fur. Co. v. Meyers, 16 Ala. App. 268, 77 So. 418; Weinberg v. Naher, 51 Wn. 591, 99 P. 736, 22 L.R.A. (N.S.) 959; Cain v. Gimon, 36 Ala. 172; Day Barclift v. Stewart, 202 Ala. 230, 80 So. 289; Vanpell v. Woodward, 2 Sanf. Ch. 145; Grippo v. Davis, 92 Conn. 693, 104 A. 166. Equity will interfere to prevent irreparable injury. McCreery v. Sutherland, 23 Md. 471, 87 Am. Dec. 583; Watson v. Sutherland, 5 Wall. 79, 18 L.Ed. 580; Dingley v. Buckner, 11 Cal.App. 181, 104 P. 479. The chancellor has a large discretion in the matter of retaining an injunction. Mobile W. R. Co. v. Fowl River Lumber Co., 152 Ala. 320, 44 So. 471; Planters' Merchants' Bank v. Laucheimer, 102 Ala. 454, 14 So. 776; Lehman v. Graham (C. C. A. Fla.) 135 F. 43; Massie v. Buck (C.C.A. La.) 128 F. 31; Francis v. Gilreath Co., 180 Ala. 338, 60 So. 620; Franklin v. Long, 191 Ala. 310, 68 So. 149; Toney v. Burgess, 208 Ala. 57, 93 So. 850.
The appeal challenges the correctness of the decree denying the motion of appellants-defendants to dissolve injunction, and upon consideration of the motion and affidavits and sworn answer decreeing "that said motion to dissolve the preliminary injunction be and the same is hereby denied and overruled."
When the same is carefully considered, there was reasonable indication that the check for interest to a date beyond the sale day was accepted, and that other reasonable time would be extended to the mortgagor, and that the latter was thereby lulled into repose or sense of security for the supposed extended time, and that he acted thereon and to his detriment or prejudice as a reasonable man was authorized to do.
A mortgagee must not, by word or conduct, mislead the mortgagor to his prejudice in the premises, as to the fact of foreclosure or the time, place, and manner of sale. Ivy v. Hood, 202 Ala. 121, 79 So. 587; Henderson Law Co. v. Wilson, 161 Ala. 504, 49 So. 845.
The temporary injunction was retained that the case could be tried upon full pleading and proof to final decree. And other discussion of the facts will not now be indulged, or the same may be premature.
The complainant fully submits his cause to the court, and offers to pay all that may be found to be due; asserts his ability and willingness to comply with the order made. Any other offer or tender would have been futile, and he was not required to make the same — to do a vain and useless thing. Day Barclift v. Stewart, 202 Ala. 230, 80 So. 289; Root v. Johnson, 99 Ala. 90, 10 So. 293; Cain v. Gimon, 36 Ala. 168, 174; Weinberg v. Naher, 51 Wn. 591, 99 P. 736, 22 L.R.A. (N.S.) 959.
In the propriety of restraining injunctions, the chancellor has a large discretion (Lauderdale v. McAllister, 193 Ala. 175, 68 So. 984), notwithstanding the denials of the answer (Mobile W. R. Co. v. Fowl R. L. Co., 152 Ala. 320, 44 So. 471), if the court can see good reason, on the facts disclosed, why the injunction should be retained, or, if not, entails irreparable loss upon complainant. S.C. Cruce v. N.C. McCombs, ante, p. 587, 129 So. 279; Toney v. Burgess, 208 Ala. 57, 93 So. 850; Daniel v. Birmingham Co., 207 Ala. 659, 93 So. 652; Lauderdale v. McAllister, 193 Ala. 175, 68 So. 984; Franklin v. Long, 191 Ala. 310, 68 So. 149; Francis v. Gilreath C. I. Co., 180 Ala. 338, 60 So. 919; Parrish v. Reese, 165 Ala. 638, 51 So. 824; Gilreath v. Carbon Hill, etc., Co., 157 Ala. 153, 47 So. 298.
The judgment of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.