The question is, whether the injunction prayed for should be granted on the facts stated in the bill.
The main question involved is one of great importance, and in reference to which, and to the decisions touching it, it may be said that there is great uncertainty and perplexity. The decision *49on the present motion is not founded on any ultimate conclusion on the main question. I go on the ground that the facts stated in the bill, present, in my judgment, a question within the jurisdiction of the Court, and .in reference to which a party to this controversy should not be permitted to act on his own construction of the complainant’s mortgage, and remove the property claimed to be covered by it out of the jurisdiction of the Court.
To refuse the injunction now, would be to decide, that the complainant cannot, under the facts stated in the bill, or any proofs that may be made by him under the bill, have any lien on the machinery by virtue of his mortgage, because a denial of the injunction would be leaving Johnson at liberty to carry out his design of removing the property out of the State, and thus out of the reach of any decision the court might make on the question whether the complainant has such lien. It is no answer to this to say that Johnson is a man of responsibility. If the complainant has a lien on the machinery, no personal responsibility can bo substituted for such lien without his consent.
As to the argument that Johnson Avas a mortgagee in possession of the machinery, and had, therefore, a right to sell it, this assumes that it was personal and not a part of the realty. It assumes, too, that by his purchase of the realty for taxes he was in possession of the machinery as personal property, and that after Johnson’s right in the realty was extinguished by the tender of the amount paid at the tax sale, and the interest thereon, in compliance with the provisions of the statute for redeeming property sold for taxes, he remained in possession of the machinery as personal property; and assumes, that AA'here there are several mortgages on personal property, and one of the mortgagees is in possession, he may sell it at public auction on notice.
If the complainant’s mortgage covered the machinery, it is a plain case for the interposition of the court to prevent its removal ; and if, nnder any proofs that may properly bo made under the bill, it may appear that the complainant is right in his construction of his mortgage, it is proper that the court should hold the property within its jurisdiction till the question involved can he satisfactorily decided.
*50An injunction will be allowed. The mortgagors should be made parties defendants.
Injunction allowed.