# Cornell v. Green

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## Dissenting Opinion

    Brown
United States Supreme Court
163 U.S. 75
Cornell v. Green
This was a bill in equity filed by John E. Cornell in the circuit court of Cook county, in the state of Illinois, against Hetty H. R. Green, Julius White, trustee, and Benjamin E. Gallup, trustee, to redeem land in Chicago from two mortgages, and to set aside a decree of foreclosure thereof, and a sale and conveyance under that decree. The case was, in substance, as follows:
George W. Gage, being the owner in fee simple of the land, mortgaged part of it on July 22, 1871, to White, as trustee, and the rest on May 7, 1873, to Gallup, as trustee, and on December 18, 1874, conveyed the whole in fee to William F. Tucker, by deed duly recorded.
On September 24, 1875, Gage died, leaving a widow, Sarah H. Gage, and six children (two of them minors), and a will by which he appointed William F. Tucker, Lewis L. Coburn, and the widow his executors, and devised to them all his real estate.
On November 27, 1875, Mrs. Green, having become the owner of the debts secured by both mortgages, filed a bill in equity to foreclose them, against Sarah H. Gage, described as widow of George W. Gage, and executrix of his will; his six children, including the two minors; 'William F. Tucker, Joseph K. Barry, and John W. Clapp, all of whom are residents of the county of Cook, state of Illinois, and citizens of said last-named state, and guardians of said minor children, the said William F. Tucker being also one of the executors of the last will and testament of the said George W. Gage, deceased'; Coburn, described as an executor of Gage's will; White, Gallup, and other persons. That bill set forth the mortgages, and breaches of the conditions thereof, and Gage's death, family, and will, and alleged that Gage on December 18, 1874, conveyed to said Tucker all the land in question, subject to said incumbrances, and 'that said above-named parties against whom this bill of complaint is brought have, or claim to have, some interest in said premises described in said trust deed, by mortgage, judgment, conveyance, or otherwise, but your oratrix states those interests, whatever they are, are subject to the rights of your oratrix under her securities before mentioned, and cannot be set up against the same, nor in any way interfere therewith,' and prayed for process 'directed to the said Sarah H. Gage, and the other defendants hereinbefore named.' In the subpoena issued upon that bill, and in the officer's return thereon, Tucker was described as guardian and as executor, and not otherwise.
On April 5, 1876, none of the defendants above mentioned having appeared or answered to that bill (except Gage's two minor children, who appeared by a guardian ad litem, and submitted their rights to the court), an order was entered that the bill be taken for confessed against them, and the case referred to a master to ascertain the amounts due upon the mortgages. On July 31, 1876, a decree was entered confirming the report of the master, and ordering a sale of the land by him to satisfy the amounts found due. On December 7, 1876, the land was accordingly sold by auction to Mrs. Green. On February 2, 1877, a final decree was entered confirming the sale, and foreclosing the mortgages, and on February 3, 1877, pursuant to that decree, a deed of the land was made by the master to Mrs. Green.
On September 13, 1887, Tucker died intestate, leaving a widow and three children, all of age. His widow and three children, all the year, and in January and February, 1890, his three children conveyed to Cornell, by deeds duly recorded, all the land described in the two mortgages.
On April 4, 1890, Cornell filed the present bill against Mrs. Green and the trustees named in the two mortgages, setting forth his own title and the mortgages, and a copy of the record of the proceedings upon the bill of foreclosure; alleging 'that the said William F. Tucker was the owner, in his own right, of all said property, and so appeared of record at the time said bill for foreclosure was filed as aforesaid, and during the pendency thereof, and at the time of said sale, and still continued to be the owner thereof up to the time of his death; that the said William F. Tucker was not made a party defendant to said foreclosure proceedings, nor was the said William F. Tucker ever in court, or subject to the orders, decrees, and judgments of said court; that said decree of foreclosure so entered as aforesaid was of no binding force or effect upon said Tucker, nor upon his heirs, nor upon your orator, the grantee of said property as aforesaid'; and praying that, upon payment by the plaintiff of the sums due upon the mortgages, the mortgages might be released, and the decree of foreclosure, and the deed to Mrs. Green, be set aside and annulled.
On April 21, 1890, this suit was removed into the circuit court of the United States for the Northern district of Illinois, upon the petition of Mrs. Green, duly alleging that the plaintiff was a citizen of Illinois, and that she was a citizen of Vermont, and that there was in the suit a controversy which could be fully determined as between them, being citizens of different states.
On May 26, 1890, Mrs. Green demurred generally to this bill, for want of equity On July 14, 1890, the cou t sustained the demurrer and dismissed the bill upon the ground, as stated in its opinion, that Tucker, in his individual capacity, was sufficiently made a party to the bill of foreclosure, and was bound by the decree therein. 43 Fed. 105.
On July 7, 1892, Cornell appealed to this court, and assigned as errors the dismissal of his bill for want of equity, the refusal to grant the prayer of his bill, and the decision that his grantor, Tucker, was barred of his equity of redemption by reason of the foreclosure proceedings 'in a case in which Sarah H. Gage, William F. Tucker, executor and guardian, and others, were defendants, the said Tucker never having been personally sued or served with process, or in any way submitted himself to the jurisdiction of said court, and that said finding deprived said complainant of his property without due process of law.'
Mr. Justice Brown dissenting.
F. B. Dyche, Lyman Trumbull, and Robert Rae, for appellant.
C. W. Ogden, for appellee.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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