Thomas Selby Pltff in Error v. Philip Geines Deft in Error
ERROR TO LAWRENCE.
Belief will not be granted upon a bill, where the answer denies the allegations of the bill, if-the proof is loose and uasatisfact-ory.
The bill of -complaint filed in this cause by Geines, shows tbat he was indebted to Selby in December, 1842, in the sum of §200, on a note drawing twelve per cent, interest, which Selby wished to have secured by a mortgage on a farm, which was agreed to be given upon the conditions, that if Selby should attempt to enforce payment by foreclosure, that the land should be sold in a body, after it had been appraised by three disinterested individuals, and provided it brought two-thirds of its appraised value. That it was agreed by Selby that these conditions should be inserted in the mortgage, and tbat instructions were given to the person who drew, the mortgage, to insert them, but that they were omitted, that Geines not being able to read the English language, misunderstood its terms. That both parties supposed the *72valuation laws were then in force,' but their constitutionality being doubted, it was believed' that the insertion of the terms of the law in the mortgage, would be binding. That Selby attempted. to foreclose his mortgage in 1846, when Geines obtained an order from the Court,- directing that Selby should comply with the above conditions ; that thereupon Selby dismissed his bill, and obtained a judgment upon the note by a suit at law, and is seeking to evade the terms of the mortgage, by selling the land upon-execution without appraisement, which-proceeding this bill prays may be enjoined. A Master in Chancery allowed the injunction. '
Selby’s answer, admits the indebtedness of Geines, the recov-. ery of the judgment/ the attempt "to sell upon execution, but denies the other charge in the bill, and insists that the mortgage contains all that the parties agreed upon, and truly sets forth-the contract, and concluded with a prayer for" a dissolution of the injunction. ' - ' " - '
The testimony on the part of Geines,"shows that there was some dispute between himself and Selby, as ta what the mortgage should contain. Geines insisted upon the insertion of the conditions, and Selby refused to admit them, but that the party who drew the mortgage, is not certain whether it contained precisely the conditions insisted upon by Geines, but that he insisted that they should be there, and that he executed the mortgage with "that understanding. ■ ■
The testimony on the part of Selby, shows that the money was loaned, upon the condition that its payment should be secured by a mortgage, without such conditions as Geines pretends, Geines observing at-the time, that real estate in Illinois was the same as personal property in Ohio, that it couldcbesold for anything, that was bid for itj that Selby should have a mortgage on lands and "chattels worth $1200,00, and that it "would at any time sell for enough to pay the debts of Geines.
At the Sept, term, 1850, of the Lawrence Circuit Court, the in- 1 junction was perpetuated by Harlan, Judge, and a decree enter-. ed, directing the sale, era masse, of the lands mortgaged, after the . same shall have been appraised, &c., &c. To reverse this decree Selby sued out this writ of error, and assigns for error the perpetuation of the injunction, and the decree directing that the lands shall be appraised, &c., &c. ' '
*73C. Constable & A. Kitchell for Pltff in Error.
The plaintiff in error, had a right to pursue his remedy at law on his note, or by foreclosure of the mortgage, or both at the same time, and deft, had no right to set up the mortgage in restraint of the judgement, or compel him to collect it out of the mortgaged land only. Dunkley v. Van Buren, 3 John. C. R. 330. Jackson v. Hull; 10 John. R. 482; Delahay v. Clement, 3 Scam. 203
The bill was insufficient, because the complainant had no right to change the terms of the mortgage by parol evidence. There is no pretence of fraud, and there is no such mistake shown as entitles the complainant to change the mortgage by parol evidence. 1 Greenléaf's Ev. § 276 §282.
The testimony of one witness is not sufficient to overthrow the answer of deft. Gresleys’ Eq. Ev., 4-5 ; Greenleafs’ Ev.,§ 260.
IT. F. Linder & J. G. Bowman for Deft- in Error.
Treat, C. J.
The bill sets up, as the ground for relief, an express agreement of the parties—omitted by mistake to be inserted in the mortgage—to the effect that the mortgaged premises, in case of default in the payment of the note, should not be sold unless they would bring en masse, two -thirds of the appraised value. The answer denies the allegation, and insists that the real agreement of the parties is correctly set forth in the mortgage. The proof is altogether too loose and unsatisfactory to justify a decree reforming the mortgage, by the introduction of the provision alledged to have been omitted. At most, it only shows that the complainant was very anxious that the provision should be incorporated in the mortgage, and contended that such was the agreement of the parties, while the defendant insisted that no such agreement had been made. The mortgage was then drawn in the usual form, and executed by the complainant. It may, perhaps, have been his impression at the time, that the mortgage contained the condition in question, or that the legal effect of the instrument would be what he desired, but there is no satisfactory proof of fraud or unfairness in the execution, or that it did not embrace all of the stipulations actually assented to by both of the parties.
The decree of the Circuit Court will be reversed, and the bill dismissed with costs.
Decree reversed.