proved' :Up, and the complainaIits'and intervening'i'creditors' may t!tke judgment against the respondent cOmpany for the lmiount of their debts respectiv,ely. , Decree accordingly.. ,
CONVERSE tI. MICIDGAN DAIRY Co.
MWMgwn,S. D. 'Februe.J,'112, 18111.) .
.A O1Ortgagee can make judgmell;t creditors of the mo11;ga:gor's grantor parties to hi8 foreolo8ure suit when. these creditors. assert a cl,aim' on the ground that the transfer to the mortgagor was in fraud of tb>ir rights, 'Bndt-hat therefore tnelr executions,levied after the execution are prior,liens on the land.
S. it Jhtiltlfarlous' .it brings in . ,partiei' claiming, righU.'paramouht'&lldh6stlleto ml)rtgagor comes too late when made at the hearing, If such olalm is of equitable
, <4 mortgage executed to.'8fO\cu'!ie'notea whioh are'indorsed.before; due for\"8lue notice, peforet4!l is:ljiVied on by tpejudgment cred,l,torsoftbe claim that ,10M tl? the mortgagor wasin fraud · is paramount to the executions'of suoh oreditors, sinoe, under the Michigan law, a judgment is no lien.
mortgagee sues to ,a· ,fll<ieral ,Qourt, and makes judgment the Iilortgagorls' grantor' defendant, the suit will not 00 post;. 'poIilM ',uiitilthe termination 'Of proceedings instituted bytl1ese oreditorsin the to,establish theirl.lenll 011 tlieland; towhich,prooee,dings the mortgagee is not a party. . Opel'!'tes
4. SAME-COURTS-STATE AND
II,lEquitj'., OIl finalliearing. . . , ' . , . " '. " . '.... " in this far the are necessary to an understanding subjoined <minion, are ,as follows: . ,Theq.efendant the Michigan Dairy, C()mpanydllrived its title -to the landsdnvolved in this proceeding from·the defenda,ntDavidP. Clay; ,a.portion, of such lands having' been conveyed to the':dairy company in the year 1884, and the remainder on the 13th <lay of September, 1886. On thelilst-nienti9ned day the dairy company 'executed a mortgage upon said lanqs to, David Clay, to secure the 'payment of 56 notes, of$l,boo each, due six years In the mortgage ",as a clause making the whole debt upon defa,ultiIi the payment payable, anhe election of the of the annual interest. All of these notes were afterwards indorsed by Mr.Clay, and delivered tothecomplainant, as for the pay'inent of about borrowed byeam Clay of the com:recorded, October! 22i 1886',: and this suit t' was -instituted to foreclose·.said National' Bank· of, Gz:aild' Rtipids';Mich; ;: arid' tb,e 'Germ8ii:Batik of .Sheboygan, m\:(departies·'Uhder;'the of the
CONVERSE "', ?4lCHIGANDAIRY
bill ofcomplaint, \ypich, a,sto the defendants, merely alleged that they ,had, or claimed to have, interest in tbepremisesas subsequent purchasers, or incumbrancers, or otherwise. The Fourth National Bank of Grand Rapids in its answer denied the eleventh paragraph of the bill of. complaint, and set up that the conveyanee from Clay to the dairy company was U1ade in fraud of ClIlY's creditors, and was, nato such void; that on the 16th day of DecElmber, 1886, said Fourth National Bank recovered three j Ildgments against said Clay, aggregating about $22,333; and that the of Clay in, the lands covered by the mortgage in question had been levied upon in its suits against him by attachment about 6,th ciarof December, 1886,and,upon executions iss1led upon said judgments on or about the 28th, day: of December, '1886. , The German Bal)k of Sheboygan ,setup a similar defense, claimupon the lap4sfor the at:U!lunt.of a of ing about $4,148. recovered against Clay October 13, ,upon which execution was issued, and, on or about November 8, 1886., levied upon his interest therein. These defendants also severally set up\he pendency of suits \ntbe circuit court of the state, brought, liens under the$e levies, and both said banks prayed the ,,m,ortg;age should be: held void by reason ,of such fraud, and be not enforced as them. At, the hearing it was urged in behalf .of these banks that claim:w.sshostile and parfl,mount to that of the dai;ry and therefore prior, not suusequent,to the mortgage which:the 8oughtto foreclose; and that therefore their rights could not be adjudica.teclunder the general allegation of the complainant's bill, brought .them in subsequent purchasers or Pletcher Ii' Wanty, for complainant.' .' 'Bla.ir, Kingsley Ii' Kleinhans, for defendants the Fourth National'iBllnk of Grapd and. the German Bank of Sheboygan.
SEVERENS, J. Upon the hearing of thia cause qerman Bankof Sheboygan and the Fourth National Bank, urge and insist cannot adjudicate thl'lir rights in the lands mortgaged, .becauSe thlilir, rights, as asserted. are parat'nount to those of the mortgt;lgor, and thereto; and it ill further insisted by them that an attempt to litigate those rights on,this foreclo!!orebill would make the proceeding multifarious. Decision!lof the state supreme court arereferreo'to in support of the proposition that upon a bill to foreclose a. mortgage pnly thrul6.. matters can be litigated which affect the equity of 1'e(lemption, and that parties claiming titlea OJ; liens prior to properly .be made parties to th,e ,suit, But I do not understand. the rule to be declared inflexible by those decisions. However tba.t..luay be, the rule in the, courts of the States has long been $t:ttleddifferently, where the mortgage is of .the fee,: and . t1;l;e sale prayed.. is of the. property so mortgaged. .Finley v.Bamk oj U.S., 11 Wheat. 304; Hagan v. Walker, 14 29. In the caEle of Diatv. :&ynol;dB.9& U. S. 340, there wholly titles. :ijere the alien upon the title of t/le ,not in hos-
vol. 45. "
tiJitytohis title, but in recognition of it, and they olaim, at least such is the legal effect of their position, that they have not a paramount title; but, to the extent of their claim, a paramount lien, upon the ground that as to them Clay's deed to the company was fraudulent. As to them, the deed was not wholly void. The title passed and was mortgaged by the dairy company. Bump, Fraud. Conv. (1st Ed.) p. 451. But, independently of this, the lien the banks assert did not originate until after the mortgage was executed. As creditors at large, or having no levy, they had no lien. It is true the facts in pais upon which they found their lien, and which they bring forward as evidence, existed previously; but they connect themselves with the property only by the levy subsequent to the mortgage. Mayoord v. Hoskins, 9 Mich. 485; Tyler v.Peatt, 30 Mich. 63; Griswold v. Fuller, 33 Mich. 268; Root v. Potter, 59 Mich; 498, 26 N. W. Rep. 682; Bank v. Bates, 120 U.·S. 556, 7 Sup. Ct. Rep. 679. Under the, law of Michigan, there is no Hen by jUdgment 'merely. I think the complainant has the right to have the validity of this lien determined before the mortgaged property goes to sale; otherwise, the bidding must be for something of dubious title and value, and the satisfaction df the mortgage debt be seriously imperiled by this supervening levy. A mortgagee ought not to be left'in such a predicament. The question whether collateral controversies shall be litigated in it foreclosure suit is in large measure one of convenience, and where the interests of the parties require it, and it is necessary in order to administer adequate relief, the court should take cognizance of the collateral questions. Story, Eq. Pl.§ 539; Shepherd v. Pq>per, 133 U.S. 651, 10 Sup. Ct. Rep. 438. It may be th'at if the sale by Clay to thecornpany was fraudulent, as alleged, and the complainant had notice of it, the banks have a paramount lien. That is matter for adjudication. The suggestion that the suit is thus made multifarious is late when made at the hearing. The answers of the banks do not present that as a ground of objection,but, at least by strorig implication, invite adjudication.lt is true they ask postponement until certain proceedings alleged to be pending in the state court shall be terminated, but I know of no principle on which tbis could- be authorized. The pendency of a suit there is no bar to the present. Besides, thecomplainantis not a party to that suit, and cannot be affected by it. Cook v. Burnley, 11 Wall. 659; Insurance Co. v. Brwne'sASBignee, 96 U. S. 588; Gordon v. Gilfoil, 99 U. S; 168. These defendants, therefore, knowing, as they must have done, that the objeot 'of bringing them in at all was in order that theirclaitns should be cut off by the decree, and not having raised the objection 01 until now, come within the scope 'Of the doctrine ta. peatedly declared by the supreme court, that, if the' matters Were ofeq. uitable cognizance, the objection must be raised in limine,and, if. not then made, it should not-be entertained. Oliver v.Piatt, 3'How.333; Nelson How. 127; Story, Eq. Pl. § 284a. . ',. I indine to think that the allegation, though general, in the bill; tha.t thesedefenoonts have, or claim to have,fights and interests il'lthe prem'-
STEWART fl. SIXTH AVB. .·· CO.
ises above described as subsequent purchasers, incumbrancers, or otherwise, taken in connection with the averments of the answers in response thereto, and the evidence itaffordElthat the general allegation in the bill was understood to be aimed at the only one specific claim which the defendants assert, is sufficient; but, if not technically so, the bill may be amended in this partioular, so as to allege the defendants' levy, and, in a brief way, the claim of the defendants thereunder. The indorsement of the mortgage notes, and the delivery thereof to the complainant, operated as an assignment of the mortgage, and transferred to the holder of the notes the same equitable rights in the mortgage as he had in the notes. Cooper v. Ulmann, Walk. (Mich.) 251; Martin -v. 6 Mich. 70; Brigg8 v. Hannowald, 35 Mich. 474; Oarpent&t v.Longan, 16 Wall., 271; Kenicottv. SuperviBor8, ld. 452; Ober v. Ga1kigher, 93 U. S. 199, 206. One of the rights acquired by the assignment was that of exerwing the eleotion to declare the debt due on default-in the payment of the interest. . A decree will be entered' for complainant to the amount of the sums advanced upon the $20,000 note, and interest, leas the credits which , have stiP!llated, with the interest thereon from their several dates·.
STEWART 11. SIXTH
(Circuit Court, S. D. NtJID Yor7c.Janull1'11O, 189L)
Under Canst. U. S. Amend. art. 7, and Rev. St. § 649, which provide that no fam _ tried by a jury shall be re.:examined otherwise thanaceordtng to the ruleil of the common law, a verdict tOl;'defendllnt, in an action against a $treet railway. company tor personal injuries, will not be set aside where the evidenoe .. to defendant'. n.· ligenco,is coD1llcting. _. . ., ,-
TRIAJr-VBBDIQT-,-WEIGJlT OJ' EvmBNOB-NBGLIGBNCB.
At Law. Edwin B. SmtJA, for plaintiff. David M.Porter, for defendant. W HEELER,J. The plaintiff was riding as a pllssenger on the frQnt platform of one of the defendant's cars, to smoke. He fell off. One of his hands was caught under one of the forward wheels, andinjt;1re<1 -80" that it had to be cut off. He testified that the car was going fast and rocking up and down; that, in passing to change sides, he touched the driver, whereupon the driver hit him violently witq the driver's shoulder, and sent him against the end of the 'car, and, with the motion of the car, against the dash-board, so that he fell over. The driver testified that the plaintiff fell off, and that the plaintiff did not hit him, nor he the plaintiff, in any manner. This action is brought for that injury. It hss been twice tried before, with disagreements of the jury. On this trial it was submitted to the jury on the question whether the driver hit
plaintiff violently OJ; not, ina cb,arge to which the plaintiff did not "The jury foulldfor the defe,ndant, and the plaintiff moved for because thEj,verdict was against the evidence and induced by a passion or prejudice.'rhis motion h\ls now been heard. The,.<;onstitution and laws expressly require that intqis court trials unlesE! and provide that no fact tried by jury s};l,aIIl?eQtherwise re-examined than. according to the rules of the common Amendme1lts, art. 7, Rev. St. § 649. .The verdict may, acco.rding, 'to ,the rules of the common Iayv,pe examined to see if it is contrary tot4e without evidence, or the result ofpa&sion or prejudice. Here ill no evidl'lflCe of the latter unless it arises from comparison of the.vl'lrdictwith that on which it was found, and thisaff'ords none if the was well founded. That here was evidence elJ.ch.way on the question submitted iE\shown by the bare statement of thecll-se, and that it waa somewhat evenly balanced is shown by the result·ofthe two former trials: Under such circumstances the case could not be withdrawn froIP and a verdict directed for thb plaintiff or for the defend· ant; Qeither.requested or suggested that. ,H-ickman v.Jones, 9 Wall. 197; Ma'llChesWr ,X. $ricBBon, 10<5 U. S. 347. A verdict could be directed if one the other way would be set aside as contrary to the evidence.' Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125j Robertson v. EdelhoJf, 132 U. S. 614,10 Sup. Ct. Rep. 186; Gunther v. 1118Urance Co., 134 U. S. 110, 10 Sup. Ct. Rep. 448. If the case must be submitted upon the evidence, beset aside as being contrary to the evidence without re-examination of the fact tried by the jury, which is so expressly prohibjted. The fact cannot be re-examined in search for passion or prejudice more than for any other purpose. If the ,court, dJff(lred jury in opinion about the fact, as to which nothing is intimated, that of itself would afford no ground for setting aside the verd,ict. . It would interfere with the exclusive province of the jury secure<l 'by the constitution. While the plaintiff was riding on the platform without voluntarily, he was taking the risk of all ordinary dangers of that situation. Violence of the driver was the only ground for recovery which the evidence tended to show; and the existence of that WllS the only issue which arose. The plaintiff had the benefit of having every consideration in his f!lv,oron that issue laid before the jnry, and, as it has thereupon beeh found against him, no feason is apparent why he must not abide by the result. Motion denied, stay vacated, and judgmeIiton verdict;
;':1.:' ..... ::J
LACKETT 'V; RUMBAUGH.
(O£reuit Cowrt,W.'D. North OaroUna.' January lIS,1891.)
ATlACBMENT-BERVIOE lIT PotlLIOATION..;..JUBIsD1CTrON.
Where,ll.naction is comlllenced in a, court against threl'lpartnerB, one ot whom is not served, and no alia8 summons.!s issued, the suit as to him is at an end, and a'subsequent attachment upon an aildavit of and order ot thopgh by thjl Code of North Caroij.:na, iii! yoj.t:i, as the, fed" eral court cannot thus acquire jUrisdiction without the service otprocess in personam on defendant. :' , , ' ,
The general appearance of defendant partner ,not served with process without entering apy plea is not a waiver of the lack of of the oourt m, respeot , ', " ' , , , to the subJeolrttlllttet. Where 'partners among wbomdissensions have arisen, fInalty compromisethelr ditfl1renOO!l by two of them agreeing to pay the debts, releasing the third from all liability, in consideration of himself and wifl1"Conveying to the,others their est ln'the partnership realty and being paid 12,0750ut of tbe'insuriloJlce money for th,e buUdil:igs destroyed before theconipromise.'and the pat'ttter thus released:em:. powers hill, attorney ',to receiv,e the inlilurance, ,monWin tru"t for ,wife, ill paid to the attorney by tbe other OD condition that it snail not be paid to the Wife until she and ,her hU,sband have exeouted the'deeds aeeording ,1;6 the cOIDp,romise. the. fUlj.d in tnehands ,of the, is a trust ,fund, pot su t.o $!'arnishment by the lIartnership Cl'editors, prillI.',to a compliance !:lY ail of the par' :",' , ties Witb the con;ditionsofthe.coll1proinise. Tbe insurance money wasool1ected,and tbesum al1;reed to l;Illpaid'to thl} released partner Wl 8 by bisdire/l1libn paid to·an attorney Ifor the' benefit of bis wife, at' the ut:gent dem!'nd o.f of separate !ll!tAilte wflo.ll8!i pat:ll ot tbll tho]lgh she, a. partner., ,The wife:s, property m the 'consideratioofor transferrmg this fund to ,tier WM her'ilitill'est ib ·the propertV i"eleasedtotfle other partners. Partnll1'shipl1reditors sued-.he:firm. and garnJilhed this fund. 'Held, that it was not subject to tneir debts. Where a husband au4,wife purch8ll8 an fnterelt iIi partnerllbip'realty, the bUI!I,band bein!l' a partner, R!lt tJ:!e ",ifenot, and the cashpaymentis lllade With fUnds of the wife's leparateequitable estate, a deetl ,beiu&: madeto the .husband and to a trulltee·for the wife, anl118 mortgage for the uupald balance ;glven back, by, the grslltees which deed and are a,fter",ards, d!lSWllyed by tJ1e, ,consent of the patotles, except the trustee 10r the wife, and' another deed is exeouted to the wife, whll give a deed of trust for' the uDpaidpurchase money, ,the rights of the trustee for the wife are notafleoted, but h8:is entitled as against the husband's creditors to the 'latteI"il proportioti of the insurance money arising froll1 tq.e of the by , ',
'SEPARATE l!:S1'A:TB-i'RusTEB' O-tLRIGBTS.'
CQNVETA::NOEs.."..CoNlllDEUP6N-WD'JI'S lNTER,EsT J1I!' HUllBAND'S taliD.
At La.w. !: This ,is an action at-law in which a controversy hssansen between the plaintiffs, and persons ,,,:ho :have been allowed to iDterplead and set up title toafund brought into,thecustcidy of·the court by attachment pro.. ceedinga instituted by the ,plaintiffs. F. A. BoudletJ, P. A.OumwingB, and OharleaPrice, for plaintiffs., Cobb & forinterpleaders.
j,: · .
The counse).of'tllil parties have waived-a triM by jury ilild submitted all questions by, the' court; In' performihgthis duty I will conform a.an to the prfflmplesoflawlindtbe niles 'Of; practice whieh: have·, bee'l' '8nll'ouneedhyl the stale ancl.1federal