RICHARDSON V. WARNER.
843
BUTLER, J. The jurisdiction of the court is scarcely denied. The question of power to grant the relief asked, and the effect of Mrs. Acosta's letter to Mr. Welsh, need not be considered. ·In the light of the facts now presented we do not think the plain tiff has any standing in equity. Not only was he aware of the proceedings in the orphans' {lourt to ascertain the ownership, and make distribution of the fund, but he appeared there; and seems to have called attention to his claim. He did not produce the proofs and press it, however, but allowed others to enter upon a contest for the property, which consumed time and money. The court was specially adapted to hearing and determining the rights of the plaintiff, as well as of all others, and no satisfactory explanation is made of his failure to press the claim. A possible explanation may be found in the circumstance that the prima facie beneficiaries under the alleged trust (in whose behalf and at whose instance it seems probable this bill is filed) had other claims, which antedate those of the successful contestants, (while the alleged trust antedates but the smaller of them,) which were supposed to afford better chances of success. Whatever may have induced the om,ission to press the claim, it seems (quite clearly) inequitable to allow the contest for the fund to be renewed by setting it up here. It seems so in the light of tltefacts before us, allowing full credence to the defendant's affidavits, as we must on this motion. Further developments may possibly change the as.pect of the case. The motion is disallowed.
RICHARDSON V. WARNER
and others. August 17, 18811.)
(Oircuit Oourt, D. Nebraska.
t.
MORTGAGE-FORECLOSURE-DEFENSE OF USURY.
The defense of usury against a bill to foreclose a mortgage failed, where the complainant was a bona fide purchaser before maturity, and the defendant a subsequent grantee from the mortgagor, holding under deed stipulating for payment by her of the mortgage.
2.
STATUTE OF LIMITATIONS-MoRTGAGE-PROVISION FOR DEFAULT IN PAYMENT OF INTEREST. .
A provision in a mortgage that, upon default in the payment of interest due on any of the notes secured thereby, the entire debt shall immediately become due and payable, does not, of itself, cause the notes to mature so as to start the running of the statute of limitations. R MORTGAGE-FoRMER ADJUDICATION AS DEFENSE TO FORECLOSURE.
Former adjudication cannot be pleaded against a bill to foreclose a mortgage, where, long after the purchase of the notes and mortgage by the com· plainant, the defendant commenced an action against the mortgagee. obtained service by publication, and took a default aI\d a decree annulling . the mortgage, although no assignment of the mortgage to the complainan t had yet been recorded. .. . . .
Bill to Foreclose Mortgage.
844
FEDERAL REPORTER.
Mason lt Whedon, for complainant. S. O. Davidson, for defendants. BREWER, J. This is a bill to foreclose a mortgage. The defenses are usury, the statute of limitations, and a former adjudication. The defense of usury fails for two reasons :(1) The complainani is a bonafide punhaser before maturity. This the testimony unquestionablyestablishes. Counsel for defendant challenges the sufficiency of the averment of the bill in this respect. As the intent of the pleader is clear, the defect, if one existed, would be corrected byamendment to conform the pleadings to the proof. (2) The only defendant answering'is in no condition to plead usury. She is a subsequent grantee from the mortgagor, holding under deed stipulating for payment by her of the mortgage. Dolman v. Oook, 14 N. J. Eq. 68; Pinnell v. Boyd, 83 N. J. Eq. 1lJO; Mitchell v. Skinner, 17 Kan. 563. The statute of limitations is also unavailing. An action to foreclose a mortgage can be brought within 10 years. Compo St. Neb. 531, § 6; Hale v. Ohristy, 8 Neb. 268; Stevenson v. Oraig, 12 Neb. 469; S. C. 12 N. W. Rep. 1; Ohelley v. Oooper, 14 Neb. 418; S. C. 16 N. W. Rep. 471. A provision in a mortgage that, upon default in the payment of interest due on any of the notes secured thereby, the entire debt shall immediately become due and payable, does not, of itself, cause the notes to mature, so as to start the running of the statute of limitations. The stipulation is permissive only, and simply gives a privilege to the mortgagee. Bank v. Gas d; Ooke 00., 4 McCrary, 820; S. C. 14 Fed. Rep. 763; Lowenstein v. Phelan, 17 Neb. 429; S. C. 22 N. W. Rep. 561; Fletcher v. Daugherty, 13 Neb. 226; S. C. 13 N. W. Rep. 207. This has become the settled law of the supreme court of Nebraska, and of the United States circuit court for this district, and, being a rule of property, must, upon the principle of st.-tre decisis, be followed irrespeotive of any personal opinions of the present judge. The plea of a former adjudication must also be overruled. Long after the purchase of the notes and mortgage by the present complainant, the defendant commenced an action against the original mortgagee, obtained service by publication, took a default, and a decree annulling the mortgage. The oomplainant being no party to that proceeding, it was as to him res inter alios acta. The fact that no assignment of the mortgage to him had been recorded did not make the decree operative upon his rights. These being the only defenses, and none of them being sufficient, complainant is entitled to a decree of foreclosure as prayed. Whether, in case of a deficiency upon sale of the mortgaged premises, he will be entitled to a personal judgment over, is a question whioh need not now be considered.
FARWELL V. KERR.
345
FARWELL and others v. KERR and others. (Circuit Court, 8. D. Iowa. June 26,1886.) BILL-COSTS-HuSBAND AND'WIFE-CONVEYANCE OF HOMESTEAD PROPERTY.
Where a wife joined her husband in the mortgage of store property, to onetwentieth of which she held the legal and equitable title, but previously required him to convey to herself several pieces of property, one of which was ihe west half of the block occupied by them as a homestead, as consideration therefor and on the ground that her husband received from her father after her marriage considerable money used in the building of the store, and the judgment creditors filed a bill as complainants to set aside said con veyance of the husband to the wife, held that, under the peculiar circumstances of this case, the conveyance be sustained as to the homestead, and be decreed void as to the remainder of the property; that each party pay the costs of its own testimony, and the other costs of the case go against the defendants.
Creditors' Bill. Cummins et Wright, for complainants. L. Kinkead, for defendants. BREWER, J. This is a bill filed by complainants, judgment creditors of A. J. Kerr, to set aside a conveyance made by him to his wife, Julia Kerr, and to subject the property thus conveyed to the p'l.yment of their judgments. The law governing transactions of this kind is well settled in the federal courts. Humes v. Scrug,qs, 94 U. S. 22; Seitt v. M'itchell, ld. 580. The testimony is voluminous, and in many respects indefinite and unsatisfactory. Comment in detail would be useless, and I content myself with a statement of my conclusions. The judgment debtor had been a merchant. He became insolvent, and transferred all his property by mortgage or conveyance. He mortgaged the lot upon which his store building was situated to a bank to secure a debt to it. His wife joined in this mortgage. She held the legal and equitable title to one·twentieth of this property. Before she would execute this mortgage she required a conveyance of other property-that now in controversy-to herself. A part of the property thus conveyed was the W. t of block 13, Walter & Roach's addition to Knoxville. This entire block was occupied by Mr. and Mrs. Kerr as their homestead. Whether the entire block was exempt is a question under the evidence. The validity of this conveyance is claimed on the ground that by the mortgage she parted with her own property; that in their early married life her husband received from her father considerable money and property; and that he used it in the building of the store on the lot mortgaged to the bank under an arrangement with her that when the buildil)g was completed he would convey an undivided half of the entire property to her. Hence she claims that she was equitably the owner of one.half the store property, and that the value of this was about the same as the value of