Dole v. Hickey

32 A. 761, 67 N.H. 496

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1893
• Status: Published

Opinion

Chase, J.

When the injunction was issued (January 16,1886) the plaintiffs had a legal title to the Stark Mill property by the deeds from Hickey and Emery. By their agreement with Hickey, he had a right to redeem one undivided half of the property by-paying one half the advances made by them to Emery. Hickey v. Dole, 66 N. H. 336, Although the plaintiffs held an unconditional legal title to this half, they were in fact and in equity mortgagees of it. In the absence of an agreement otherwise, they were entitled to retain the possession and take the profits until Hickey performed his part of the agreement. Brown v. Cram, 1 N. H. 169; Furbush v. Goodwin, 29 N. H. 321; Tripe v. Marcy, 39 N. H. 439, 444; Gray v. Gillespie, 59 N. H. 469; Waterman v. MacKenzie, 138 U. S. 252, 258, 259. Moreover, the agreement did not authorize Hickey to bring logs from outside lands and saw them at the mill, but only to operate the lands and mill together. The plaintiffs might have maintained an action of trespass against him for the acts he would have done but for the injunction. Furbush v. Goodwin, supra. Under these circumstances it is unnecessary to determine whether the injunction was properly issued. If it was not, no damage was occasioned to the defendants by it, for its only effect was to restrain them from committing trespass. Their rights were not infringed by it. They are not in a position to claim reimbursement for expenses incurred in an attempt to procure a dissolution of it. On the other hand, if the injunction was rightfully issued, it fulfilled its office by protecting the plaintiffs’ possession until they were paid the sum due them according to their agreement with Hickey. After such payment there was no occasion for its continuance.

Case discharged.

Blodgett, J., did not sit: the others concurred.