Osborn v. Taylor

5 Paige Ch. 515, 1835 N.Y. LEXIS 194, 1835 N.Y. Misc. LEXIS 99

• Court: New York Court of Chancery
• Decided: October 3, 1835
• Status: Published

Opinion

The Chancellor.

This is not a proper case for a preliminary injunction, or to allow the complainant to give security instead of paying the money. If the allegations in the bill are true, the judgment is no lien upon the complainant’s farm, unless there was fraud in obtaining the discharge and the complainant has purchased with notice of the fraud. The sale under the execution, therefore, will not divest any legal or equitable bona fide interest which the complainant has in the land. The only possible injury which he can sustain by a sale under the execution will be, to have a cloud cast upon his title. But a preliminary injunction is not necessary to prevent that effect of the sale; for the commencement of this suit, and the filing of a notice of the lis pendens in the clerk’s office of the county where the land lies, will enable the complainant to obtain á decree at the final hearing, declaring that the judgment was not a lien upon the farm, and that the sale under the execution was void. This will effectually remove any cloud which may be cast upon the title by such sale. A preliminary injunction should not be granted, before answer, unless it is necessary to protect some interest or right of the complainant, which may be injured, impaired, or endangered, by the proceedings of the defendant in the mean time, as it frequently turns out, when the answer comes in, or at the hearing, that the sole object of obtaining the preliminary injunction was, to embarrass the defendant’s proceedings, and thus compel a compromise.

Injunction denied.