Breon v. Strelitz

Headnote

Sabe op Mobtgaged Pbopebty.—If a mortgage is recorded, its lien is not affected by sales of the mortgaged property made by the mortgagor pending proceedings to foreclose it.

Enjoining Sabe of Mobtgaged Pbopeety.—An injunction should not be granted to restrain the mortgagor from-selling the mortgaged property pending proceedings to foreclose a mortgage.

Appeal from the District Court, Seventeenth Judicial District, County of Los Angeles.

The plaintiff, on the 29th of March, 1873, loaned the defendant fifteen hundred dollars, for the term of five years, and the defendant executed his promissory note therefor, and, to secure the note, gave the plaintiff a mortgage on lots 1, 2, 3 and 4 of block B., in the city of Los Angeles. The defendant covenanted in the mortgage that he would, within six months, expend the sum of fifteen hundred dollars in erecting permanent and valuable improvements on the mortgaged property, including at least one substantial dwelling-house. The plaintiff, on the 5th of January, 1874, filed a bill to foreclose the mortgage, in which he alleged that the mortgaged property was not worth more than four or five hundred dollars, and that he would not have made the loan but for the covenant contained in the mortgage, and that the defendant in order to obtain the loan, fraudulently represented that he would make the improvements mentioned in the covenant, and that the defendant had not made the improvements; that he owned some lots in Los Angeles, beside those mortgaged, and was threatening to

sell all his lots, including those mortgaged, in order to defraud the plaintiff out of his debt. That the defendant was insolvent, and the plaintiff would lose his debt if the defendant sold his property. There was a prayer for a preliminary injunction restraining the defendant from selling any of his lots in Los Angeles. The Court granted the preliminary injunction as to the lots mortgaged. The defendant appealed from the order granting the injunction.