Schwarz v. Sears

1 Harr. Ch. 440

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor :

This is a motion to dissolve an injunction:

First, for want of equity in the bill.

Second, for that the complainants have not brought into court the amount due.

There is sufficient stated in the bill to warrant the interference of the court, and as the case now stands to require that this court should afford the complainants the protection they ask. The defendants not having answered the allegations of the bill it must be taken to be true, for the purposes of this motion.

But it is further urged that the complainants should be required to bring the amount actually due into court. The court in its discretion may require as a condition of granting the continuance of an injunction that the complainants bring the amount apparently due into court. It is a general rule that when a party comes into a court of equity for relief he must do equity.

The cases where the deposite of money is dispensed with when relief of this kind is sought for in this court, are, where there is uncertainty as to the amount due, or doubt whether in the progress of the cause it may not turn out that no part of the claim should be paid; such is not the case here.

It is admitted by the bill that there is a balance due upon the mortgage which they profess their readiness to pay, and which can be as well ascertained now by reference to a master to compute the amount due after deducting the several payments as at any other stage of the cause.

If tho defendants choose to submit to the case as made by the bill,' I can see no reason why they should be subjected to the expense of answering.

The complainants, by the course pursued by the defendants, were compelled to come into this court to obtain relief, and as the case now stands I see no reason why they are not entitled to the relief they ask. The complainants proffer their readiness to pay the amount actually due and as preliminary to granting them the relief they ask, they should be required to do so.

Let it be referred to a master to compute the amount remaining due after deducting all payments which have been made ; and it is ordered that the complainants within sixty days after such report becomes absoluto, shall deposite in this court subject to the order of this court, the amount remaining duo, with interest from the date of the report; and upon compliance with said order, the injunction to stand until further order.