Farwell v. Brown

35 F. 811, 1888 U.S. App. LEXIS 2550

• Court: U.S. Circuit Court for the District of Indiana
• Decided: July 21, 1888
• Status: Published

Opinion

Woods, J.,

(after stating the facts as above.) It is the well-settled rule of practice in Indiana that in an action of foreclosure a party defendant must bring forward for adjudication whatever right or interest he may have or claim in the mortgaged property, and that, in default of so doing, the decree, though silent on the subject, will be deemed as effective to bar the right as an express adjudication could be made. Ulrich v. Drischell, 88 Ind. 354; Hose v. Allwein, 91 Ind. 501. In addition counsel have cited thfe following: Tate v. Hunter, 3 Strob. Eq. 139; Stockton, v. Ford, 18 How. 418; Binck v. Wood, 43-Barb. 320; Hotel v. Parker, 58 Mo. 327; Covington v. Sargent, 27 Ohio St. 237; Prentiss v. Danaher, 20 Wis. 314; Insurance Co. v. Sixbury, 17 Hun, 424; Loring v. Mansfield, 17 Mass. 394; Barksdale v. Greene, 29 Ga. 420; Dewey v. Peck, 33 Iowa 242; Murrell v. Smith, 51 Ala. 305; Kelly v. Donlin, 70 Ill. 378; Hatch v. Garza, 22 Tex. 177; Marsh v. Mandeville, 28 Miss. 128. Counsel for-i complainant, not disputing this rule, contend that it does not apply, because,' as the record shows, the court, at the instance of the respondent, (complainant in the action referred to,) ruled that the issue was not tried, and could not be tried in that action, and struck out the evidence adduced on the subject. Freem. Judgm. § 278. If the record bore out this proposition of fact, the court could not but agree with counsel, but upon close examination it does not appear that the state court ruled, and, indeed, it could not have ruled, on the record before it, that an issue could not have been formed in the case upon which the question of the validity of the mortgage as between complainants and Cornelia Brown could have been determined. The motion made to strike out the evidence involved no such proposition, but, by implication at least, indicated the opposite view; and when the court said or hold that the “fraudulent character of the mortgage was not triable,” the meaning was “not triable upon the issues made,” and this the supreme court affirmed on appeal, and declared the appellants at fault for not having presented the issue in a proper way. That decision, whether right or wrong, concludes the point between the parties here. The legal effect of this record therefore is, not that the complainants were denied a trial of the issue now tendered by an improper ruling of the court made at the instance of their adversary, but that no such issue was before the court; and consequently, under the rule stated, the rights involved must be deemed to have been settled and denied by the decree, as if the issue had been properly formed and determined adversely to the complainants. The fact that the complainants ■were not made parties originally, but were admitted to defend upon their own motion, if of any special significance, would seem to add emphasis to the requirement that they should have brought forward in that suit every cause for attack upon the mortgage which they had. It was certainly not competent for them to assail it for want of consideration,—if that be the proper construction of their cross-complaint,—and hold in reserve for another attack the charge of fraud, as distinguished from want of consideration. Indeed, the-attack now sought to be made on the ground of fraud is predicated largely on “want of consideration.” If the objection made by Mrs. Brown to the cross-complaint was technical, and might have been waived so as to permit a valid adjudication of the question of fraud as if well pleaded, it is also true that, the objection having been made and, as the supreme court of the state has said, -well made, the complainants might have obviated it by proposing the necessary amendment of their cross-bill, and, not having done this, must be presumed to have chosen to abide by the issue as made, however technically construed. Plea sustained.