Parsons v. Hughes

12 Md. 1, 1858 Md. LEXIS 2

• Court: Court of Appeals of Maryland
• Decided: June 2, 1858
• Status: Published

Opinion

Tuck, J.,

delivered the opinion of this court.

This is an appeal from an order granting an injunction, and must be determined on the bill, without reference to the answer. McCann vs. Taylor, 10 Md. Rep., 429.

Upon carefully considering the averments of the bill, which on this hearing must be taken as true, we are of opinion that the order was properly granted. It is unnecessary to multiply authorities on the question of the court’s power to interfere by injunction to prevent waste or destruction of property covered by mortgages. It has been frequently exercised, and was recognized in Clagett vs. Salmon, 5 G. & J., 314, where the bill was filed before the mortgagee was entitled to proceed to recover the debt. The same principle applies after default made by the debtor, for the mortgagee is not bound to take possession of the property by process at law. He may elect to prosecute his remedy in equity, and the debtor ought not to complain of being restrained from impairing the security which is held by his creditor. The subject was before the late chancellor, in a case where real and personal property were both conveyed by mortgage, and the debtor was selling and misapplying the personalty. Brown vs. Stewart, 1 Md. Ch. Dec., 87. Concurring in the views there expressed, we are willing to rest our affirmance of the present order on the chancellor’s opinion.

(Decided June 2nd, 1858.)

Order affirmed and cause reminded.