Facts to be verifled by oath.

1827.

may issue injunc

SECT. 13. No writ of injunction shall be issued, unless the facts stated in the application for the injunction, shall be verified by the oath of the petitioner, or of some competent witness.

1857. SECT. 14. Whenever application for an injunction shall be made Court or judge to any court or to any judge, who has power to grant injunctions, tion forthwith, or such court or judge may, if the circumstances of the case demand it, cause notice to be issue an injunction forthwith, or may, at its or his discretion, cause

given.,

1865.

Any party interpear, &c.

immediate notice of the application to be given to the adverse party, to show cause why such injunction should not be granted, and it shall be sufficient, on such application for a temporary injunction, to present to the court or judge the original petition, which contains the prayer for an injunction, verified as required by law, without any further petition, application, or motion in writing.

SECT. 15. Any person, who may be directly or indirectly interestested may ap- ed in, or who is liable to be affected by, the granting of any temporary or permanent injunction, may appear and be heard with regard to granting or dissolving the same.

1827. Hearing on mo.

SECT. 16. Whenever an injunction shall have been granted by a tion to dissolve judge in vacation, such judge may, on application of the party against injunction. whom the injunction issued, and before the session of the court to which it is returnable, proceed to a hearing, on a motion to show cause why the injunction should not be dissolved, reasonable notice of such motion, and of the time and place of the hearing, having been first given to the adverse party; and on such hearing, said judge may continue or dissolve the injunction, or suspend the same, until the order of the court to which it is returnable..

When and to

ing of applica

may be transferred.

SECT. 17. Whenever any judge of the supreme court of errors, or whom the hear of the superior court, shall have granted an injunction in vacation, tions to dissolve, and it shall not be convenient for him, by reason of sickness, or other cause, to hear and decide an application made to him to dissolve it, he, or in case of his absence or disability, the chief judge of the supreme court of errors, may order, that such application shall be heard and decided by such other judge of said court as he shall designate, and such other judge may thereupon hear and decide such application.

for advice of

injunction to be

1865. SECT. 18. Whenever an injunction shall be granted by a judge in In case reserved vacation, and the court to which the original petition is returnable, court of errors, shall reserve the questions arising thereon, for the advice of the sudissolved, when. preme court of errors, and said court shall advise the superior court that said petition should be dismissed, and the injunction dissolved, such injunction shall be deemed to be dissolved, from the day such advice is filed in the office of the clerk of said superior court.

SECT. 19. Whenever, on an application for an injunction, or for

given them by charter, of calling in such subscriptions by installments at such times, &c., as they think proper. Ward v. Griswoldville Manufacturing Co., 16 C. R. 593. Directors of a trading corporation may be restrained by injunction from mismanaging the business, or wasting the funds. Sears v. Hotchkiss, 25 C. R. 171. On petition of tax-payers, an injunction will be granted against a city and its treasurer, to prevent expenditure of money from its treasury, under authority of a vote of the city, for a purpose not authorized by its charter. New London v. Brainard, 22 C. R. 552. Where money of a town is illegally appropriated by a vote of the town, an injunction will lie. Webster v. Harwinton, 32 C. R. 131. An injunction will be granted on petition of a taxpayer, to prevent use of school house for religious meetings. Scofield . Eighth School District, 27 C. R. 499.

Injunctions will be granted at the discretion of the court, and only for great and irreparable injuries, and where adequate relief cannot be had at law. Whittlesey . Hartford, Providence, and Fishkill R. R. Co., 23 C. R. 421.

The power of granting injunctions is to be exercised for the protection of acknowledged rights, rather than for the establishment of doubtful ones." Roath v. Driscoll, 20 C. R. 533. Falls Village Water Power Co. v. Tibbetts, 31 C. R. 165.

Fees to judge for

the dissolution of an injunction, to a judge in vacation, the parties 1827. shall appear, and a trial shall be had, the judge trying the application trial in vacation. shall be entitled to the same fee for trying it, as the party would have been required to pay as court fees, if the trial had been in court. SECT. 20. The costs of an application to dissolve an injunction 1844. may, whenever a final decree shall be made in the cause, be allowed ed. and taxed by the court, according to its discretion.

Costs, how tax

1843.

tion, how ad

SECT. 21. Whenever any temporary injunction shall be granted to sales of personal restrain the sale of personal property, levied upon by any writ of exe- estate levied cution, the judge or court, granting the injunction, may order the upon by execu officer, levying the execution, to adjourn the sale for such time or journed. times, and in such manner, as said judge or court shall deem proper; and the sale shall be by said officer adjourned accordingly.

SECT. 22. Whenever any such injunction shall be granted without When officer such order for adjournment, the officer levying the execution may, such sales withmay adjourn from time to time, while the injunction shall be in force, adjourn the out order. sale for such time as the circumstances of the case may require; and while such sale shall be so adjourned, the lien created by the levy shall remain in force.

CHAPTER III.

OF PASSING TITLE TO REAL ESTATE, OF THE FORECLOSURE OF MORT-
GAGES, AND OF ACCOUNT.

title to land.

SECT. 23. Courts of equity may pass the title to real estate, by Power to pass decree, without any act on the part of the defendant, when, in their judgment, it shall be the proper mode to carry the decree into effect; and such decree, having been recorded in the records of the town where the land lies, shall, while in force, be as effectual to transfer the same, as the deed of the defendant or defendants.*

execute conveyance in behalf of

SECT. 24. Whenever any minor shall be interested in any mort- Guardian may gaged, or other real estate, which in equity ought to be conveyed to any other person, and such conveyance shall be decreed by a court minor. of equity, the guardian of such minor may execute such conveyance in behalf of such minor; and said court may enjoin such guardian to make the same, under a suitable penalty.

point a guardian.

SECT. 25. If such minor shall have no guardian, at the time of Court may apbringing the suit, said court may appoint one; and the guardian so appointed may do anything, in behalf of such minor, proper for his defense in the suit, and for carrying the decree of the court into effect.

1828.

SECT. 26. Whenever any mortgagee, his assignee, or legal repre- Heirs and creditsentatives, shall desire to foreclose any mortgage, and the mortgagor ors may be sued shall have been dead one year or more, and there shall be no executor by general deof any will of the deceased, nor any administrator upon his estate, the mortgagee, or his assignee, or legal representatives, may institute

Title passes by the decree only as of its date, and is not available at law against a

prior legal title. King v. Bill, 28 C. R. 593.

scription.

a petition to foreclose the mortgage, against the heirs and creditors of the deceased, without any other description of them than that of heirs and creditors of the deceased mortgagor, naming and describing him; and the court, to which such petition shall be preferred, or either judge of such court, in vacation, may make such order relative to the notice which shall be given, as they shall deem reasonable; and such notice having been given, according to the order, and duly proved to the court, shall be sufficient notice to such heirs and creditors to appear and defend, and the court may proceed to a hearing at the first term, if it shall deein proper; but when, in such cases, there are heirs resident in this state, they shall be cited to appear and defend, as is required in other petitions for foreclosure; and any executor of the will of the deceased, or any administrator upon his estate, who may have been authorized to act as such, after the institution of the petition, and before a decree shall have been passed thereon, may appear and defend.*

What constitutes a mortgage. French v. Lyon, 2 Root, 69; Daniels v. Alvord, 2 Root, 196; Belton v. Avery, 2 Root, 279; Washburn v. Merrills, 1' Day, 189; Newberry . Bulkley, 5 Day, 384; Hoyt v. Dimon, 5 Day, 479; Page v. Green, 6 C. R. 338; Bacon v. Huntington, 14 C. R. 92; Bacon v. Brown, 19 C. R. 29; Jarvis v. Woodruff, 22 C. R. 548. It is merely a lien upon the thing pledged. Leonard v. Bosworth, 4 C. R. 421. Only a pledge of the land for the mortgage debt. Savage v. Dooley, 28 C. R. 411. Whether parol evidence is admissible to show that an absolute deed was given as a mortgage. Osgood v. Thompson Bank, 30 C. R. 27. A contract to re-convey, within a given time, on receiving the consideration of a deed with interest, will not make an absolute deed a mortgage. Reading v. Weston, 7 C. R. 143. Mortgage recorded is a valid and fixed security, when given to secure future advances or liabilities, and the mortgagee has agreed to make advances, or assume liabilities. Boswell v. Goodwin, 31 C. R. 74. The condition of the deed must give reasonable notice of the incumbrance; what is reasonable notice. Pettibone v. Griswold, 4 C. R. 158; Stoughton v. Pasco, 5 Ć. R. 442; Shepard v. Shepard, 6 C. R. 37; Bigelow v. Benedict, 6 C. R. 116; Crane v. Deming, f C. R. 887; Hubbard v. Savage, 8 C. R. 215; Booth v. Barnum, 9 C. R. 286; Osborne . Carr, 12 C. R. 195; Sanford v. Wheeler, 13 C. R. 165; North v. Belden, 13 C. R. 376; Hart v. Chalker, 14 C. R. 77; Chester . Wheelwright, 15 C. R. 562; Frink e. Branch, 16 C. R. 260; Merrills v. Swift, 18 C. R. 257; Bacon v. Brown, 19 C. R. 29; Lewis v. DeForest, 20 C. R. 427; Mix v. Cowles, 20 C. K. 420, 603; Ketchum v. Jauncey, 23 C. R. Where consideration for mortgage note was grossly inadequate, the parties thereto not expecting, at the time of its execution, that the principal was ever to be paid, it was held that the securities, so far as they covered more than the just value of the consideration, were voluntary, and would be enforced, against creditor of mortgagor, cnly to the extent of such value. Abbe v. Newton, 19 C. R. 20. See Weeden v. Hawes, 10 C. R. 50. Where mortgage is given to secure an accommodation indorser, and the note at maturity is renewed by a renewal of the indorsement, the security applies to the renewal. Boswell v. Goodwin, 31 C. R. 74.

123.

A mortgage void against creditors is good against the levy of an execution made subject to it. Lord v. Sill, 23 C. R. 319.

Rights of the mortgagor. Barkhamsted v. Farmington, 2 C. R. 600; Tobey v. Reed, 9 C. R. 216; Sumner v. Rhodes, 14 C. R. 135; Cooper v. Davis, 15 C. R. 556; Robinson v. Cross, 22 C. R. 171. Chancery will not, on tender of principal and interest by mortgagor, before the time of payment specified in mortgage deed, allow mortgagor to redeem and enjoin against action of ejectment brought by mortgagee. Abbe v. Goodwin, 7 C. R. 377. Rights of the mortgagee. Coit v. Fitch, Kirby, 254; Judd v. Woodruff, 2 Root, 298; Rockwell v. Bradley, 2 C. R. 1; Starr v. Knox, 2 C. R. 215; Wakeman v. Banks, 2 C. R. 445; Huntington v. Smith, 4 C. R. 235; Clark v. Beach, 6 C. R. 142; Beach e. Clark, 6 C. R. 354; Magill v. Hinsdale, 6 C. R. 464; Chamberlain v. Thompson, 10 C. R. 243; Smith v. Vincent, 15 C. R. 1; Dudley v. Cadwell, 19 C. R. 218; City of Norwich #. Hubbard, 22 C. R. 587. When the mortgagee is chargeable with the property in favor of later incumbrances. Rowan v. Sharp's Rifle Manufacturing Co., 29 C. R. 282. When a second mortgagee will not be postponed. Wheaton v. Dyer, 15 C. R. 307. Subsequent incumbrancer not allowed on a petition to redeem to show usury in the debt of prior incumbrancer, unless the usury and the particular facts and circumstances constituting it, are set forth in the petition. Waterman v. Curtis, 26 C. R. 241. When personal property passes to mortgagee by right of accession. Holly v. Brown, 14 C. R. 255. Rights and liabilities of mortgagee of personal property, with power to sell. Clark v. Whitaker, 18 C. R. 543; Beckley v. Munson, 22 C. R. 299.

Mortgagee may maintain ejectment against mortgagor, though mortgagor be in possession only by a tenant. Middletown Savings Bank v. Bates, 11 C. R. 519. Assignment of mortgage debt, without any conveyance of legal title in the mortgaged premises, will enable assignee to maintain bill of foreclosure. Austin v. Burbank, 2 Day, 474; Brown

Foreclosure not

SECT. 27. The foreclosure of a mortgage shall not preclude the 1833. mortgage creditor from recovering, in any appropriate action, so much to preclude a reof the claim, to secure which the mortgage was given, as the prop-covery for the

. Brown, 18 C. R. 410; Jones v. Quinnipiack Bank, 29 C. R. 25. Mortgage may be foreclosed after action at law upon the mortgage debt has been barred by statute of limitations. Belknap v. Gleason, 11 C. R. 160. Where a mortgage is given to indemnify a surety, the security does not, in the first instance, attach to the debt as an incident to it, and until the equity arises in favor of the creditor with regard to the security, the surety may release it. Jones v. Quinnipiack Bank, 29 C. R. 25.

Purchaser of a part of mortgaged premises may redeem on payment of the whole debt. Calkins v. Munsell, 2 Root, 333. Mortgagee, by a general release of his interest in the land to a third person, does not discharge land from a lien acquired by him by attachment of the same premises previous to the execution of the release. Lacey v. Tomlinson, 5 Day, 77. Mortgagee receiving rents and profits of mortgaged premises, must apply them to the reduction of his debt. Harrison v. Wyse, 24 C. R. 1. First mortgagee does not, by giving up his mortgage note in consideration of a release of mortgagor's interest in the land, lose his priority over second mortgagee. Baldwin v. Norton, 2 C. R. 161 and 709; see also Findley v. Hosmer, 2 C. R. 350, and Lockwood v. Sturdevant, 6 C. R. 372. By accepting from mortgagor a release of his title in consideration of the extinguishment of the mortgage debt, the mortgagee does not lose his remedy for breach of any covenant contained in the mortgage deed: an action at law will lie for the breach of such covenant. Lockwood v. Sturdevant, 6 C. R. 372. When first mortgagee obtains from mortgagor, without any valuable consideration other than the giving up of the mortgage note, a release of mortgagor's interest in the land, second mortgagee retains the right to redeem such first mortgagee. Mix v. Cowles, 20 C. R. 420 and 603. When prior mortgagee entered into possession, received the rents and profits, and afterward purchased the equity of redemption, he did not change his accountability for rents and profits received after the time of purchase. Harrison v. Wyse, 24 C. R. 1; but he may charge the premises for personal services in renting, collecting rents, &c. Waterman v. Curtis, 26 C. R. 241.

By mortgage deed with the usual covenants, mortgagor is estopped to deny title of mortgagee or his assignee. Cross v. Robinson, 21 C. R. 379.

As to rights of indorsees to benefit of mortgage given to secure indorser upon his indorsements, see Lewis v. DeForest, 20 C. R. 427.

As between the parties, the substitution of one note for another, is no payment. Bolles . Chauncey, 8 C. R. 389; Pond v. Clarke, 14 C. R. 334; Smith v. Prince, 14 C. R. 472. The giving a new note for the interest, will not preclude its recovery from the property pledged. Frink v. Branch, 16 C. R. 260. The legal costs arising upon a mortgage debt, are a part of it. Pettibone v. Stevens, 15 C. R. 19. Mortgagee may add to mortgage debt, amount of taxes paid by him to protect mortgaged premises; also premiums paid by him, at request of mortgagor, for insurance. Mix v. Hotchkiss, 14 C. R. 32. When mortgagee is liable to account for rents and profits. Holabird v. Burr, 17 C. R. 556; Kellogg v. Rockwell, 19 C. R. 446; Harrison v. Wyse, 24 C. R. 1.

Any subsisting estate entitles mortgagee to foreclosure. Hill v. Meeker, 23 C. R. 592. What is a sufficient averment in a bill to foreclose, to warrant court to entertain the bill. Bull v. Meloney, 27 C. R. 560.

In a bill to foreclose the mortgagor, subsequent incumbrancers need not be made parties. Smith v. Chapman, 4 C. R. 344; Broome v. Beers, 6 C. R. 198. One of two comortgagees, owning the equity, may foreclose against the other to the extent of his proportionate interest. Sanford . Bulkley, 30 C. R. 344. Bill praying for general relief, but containing no offer to redeem prior incumbrancers, should be dismissed. Card v. Quinebang Bank, 23 C. R. 353. Cannot be brought by the heir of mortgagee. Roath v. Smith, 5 C. R. 133. Mortgagor, who has conveyed away his equity of redemption, need not be a party. Swift v. Edson, 5 C. R. 531. When creditor of mortgagor should be a party. Lyon v. Sandford, 5 C. R. 544. Bill need not be brought in county where land lies. Broome v. Beers, 6 C. R. 198.

When the deed and securities must be produced in court. Beers v. Hawley, 3 C. R. 110. Title to the land cannot be investigated. Broome v. Beers, 6 C. R. 198. Palmer v. Mead, 7 C. R. 149; but see Cowles v. Woodruff, 8 C. R. 35. Plaintiff must allege and prove a legal or equitable title in himself. Frink v. Branch, 16 C. R. 260.

In a bill to foreclose, by assignee of a mortgage, parol evidence of an agreement between the maker and payee of the note that the same was to be paid in labor and not in money, not admissible to vary the legal effect of the note, or vary rights of the assignee. Goodrich v. Stanley, 23 C. R. 79. For what purpose such evidence may be admitted.

Same.

When a foreclosure will be decreed. Austin v. Burbank, 2 Day, 474; Phelps v. Ellsworth, 3 Day, 397. When not. Baldwin v. Norton, 2 C. R. 161; Shepard v. Shepard, 6 C. R. 37. Effect of decree. Derby Bank v. Landon, 3 C. R. 62; Beers v. Broome, 4 C. R. 247; Swift v. Edson, 5 C. R. 531; Bassett v. Mason, 18 C. R. 131. Decree, ordering defendant to pay a greater amount than appeared by the finding to be due upon the mortgage debt, is erroneous. Goodrich v. Stanley, 23 Č. R. 79. Decree before the expiration of the time limited for redemption, is not a satisfaction of the mortgage debt, either in whole or in part. Peck's Appeal, 31 C. R. 215. Prior mortgagee acquires no right by a foreclosure of the mortgagor, to redeem from a subsequent incumbrancer.

debt.

the

erty mortgaged, estimated at the expiration of the time limited for redemption, shall be insufficient in value to satisfy.

SECT. 28. The bringing an action, by the creditor, upon such claim, after foreclosure obtained, shall not open the foreclosure; but the value of the property mortgaged, at the expiration of the time limited for redemption, shall be ascertained by the court before which the action is pending; and the plaintiff shall recover only so much as his claim exceeds the said value of the mortgaged property. SECT. 29. Whenever any mortgage shall have been foreclosed, in any court in this state, and the time limited by the court for redemption has passed, and the title to such mortgaged premises has become absolute in the mortgagee, or in any person claiming under such mortgagee, the person, in whom such title has become absolute, as aforesaid, either in person or by his agent or attorney, shall forthwith make a certificate, describing the premises, the deed of mortgage on which such foreclosure was had, the book and page where the same was recorded, and the time when such mortgage title became absolute; which certificate shall be signed by such mortgagee or person, or his agent or attorney, and recorded in the town records where said mortgaged premises are situated.

SECT. 30. If any mortgagee, or other person, in whom a title shall become absolute, as aforesaid, shall neglect to make and lodge such certificate, for the space of one month from the time when the same shall become absolute, as aforesaid, he shall forfeit the sum of ten dollars to him who shall prosecute therefor.

SECT. 31. Whenever any mortgage shall be foreclosed, by the person entitled to collect and receive the money secured thereby, but to whom the legal title has never been conveyed, the title to the premises, embraced in the mortgage so foreclosed, shall, upon the expiration of the time limited for redemption, and on failure of redemption, immediately vest in the person so foreclosing, in the same manner, and to the same extent, as the title to such premises would have vested in the mortgagee if he had foreclosed, if the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the records of lands in the town in which the land lies, and not otherwise.

Goodman v. White, 26 C. R. 317. Mortgagor may after foreclosure redeem a subsequent mortgagee, and avail himself of such mortgagee's equity of redemption. Same. Decree, in favor of first mortgagee, will not affect equitable rights of assignee of second mort gagee, if such assignee was not a party to the bill. Swift v. Edson, 5 C. R. 531. Not necessary for assignee of second mortgage to give to first mortgagee notice of the assignment. Same. Decree obtained upon bill, brought after attachment of mortgaged premises, will not affect attaching creditor, unless he was made party to the bill; otherwise, if bill brought before the making of the attachment. Lyon v. Sandford, 5 C. R. 544. Foreclosure converts mortgage from personal into real estate; but in order to produce this effect the foreclosure must be complete, extending to every person having any right to redeem. Swift . Edson, 5 C. R. 531. A mortgagee before foreclosure is not owner of the land. Mills v. Shepard, 30 C. R. 98.

v.

Court for sufficient reason has power to allow further time for redemption. Bridgeport Savings Bank v. Eldridge, 25 C. R. 556. Payment of debt will not enable mortgagor to sustain an action at law for the legal title. Doton v. Russel, 17 C. R. 146. Nor to defend against action of ejectment. Phelps v. Sage, 2 Day, 151; Cross v. Robinson, 21 C. R. 379. Equity of redemption. Franklin v. Gorham, 2 Day, 142; Mallory v. Aspinwall, 2 Day, 280: Lacey v. Tomlinson, 5 Day, 77; Scripture v. Johnson, 3 C. R. 211; Abbe . Goodwin, 7 C. R. 377; Quinebaug Bank v. French, 17 C. R. 129; Young v. Williams, 17 C. R. 393. What will bar an equity of redemption. Skinner v. Smith, 1 Day, 124. Lockwood v. Lockwood, Day, 295. How it may be taken by execution. Punderson v. Brown, 1 Day, 93; Scripture v. Johnson, 3 C. R. 211; Hobart v. Frisbie, 5 C. R. 592; Sumner v. Lyon 7 C. R. 281; Beers v. Botsford, 13 C. R. 146. Effect of taking it, by execution. Punderson v. Brown, 1 Day, 93; Scripture v. Johnson, 3 C. R. 211; Allyn e. Burbank, 9 C. R. 151. Parties bound by the action of the appraisers. Waterman . Curtis, 26 C. R. 241. Transfer of equity of redemption. Austin e. Bradley, 2 Day, 466; Smith v. Starkweather, 5 Day, 207; Findlay v. Hosmer, 2 C. R. 350.