Mineral Point weekly tribune. (Mineral Point, Wis.) 1859-1868, 1867-03-06

foreclose the Jansen mortgage. J.
/ that George L. Schuyler was a neccssa
ry party in that suit and that although
made party by the bill, and sub
P@na issued for him. be was never
served, and no proceedings were had
to notify him Of the pendency of said
complaint by publication or otherwise
nor any proceedings by way of out
lawry, and he never appeared IN said
suit, nor was there any judgment OF
decree against him. And as there
could have been no decree for the
foreclosure of the Conan and Martin
mortgage, without setting aside the
Schuyler mortgage, aud as that could
not be set aside unless Schuyler was
before the court, at least constructive
", it follows that he was q aecessr~l
party and that the decree Is invalid
and is no estopel or bar.
AS to who are necessary parties. we
refer to Shield vs.. Barrow, II How.
1870; Mallow VS.. Hinde, y Wheat,
1913.
Another reason IS that the court
had no jurisdiction of the parties as
the record does not show that the
plaintiffs and the defendant, SCHUYLER.
were citizens of different States. and
as the fact is that they were citizens
Of the same State. Cameron Us. Nc
Roberts, 3 Wheat, 59l Gorcie vs..
Palmer, S Wheat, 699; MautoId VS..
Murry, Cranch, 4G Morgan VS.. Cal
! lender, Cranch, $40; Jackson vs..
| Twentvman, Peters, 1876 Straw
bridge Us. Curtis, Cranch, 276.
Another reason is that the court
had no jurisdiction of the subject
matter, because another suit was
pending at the same time in the State
court between the same parties. in
relation to the same subject matter.
Another reason why the decree IN
/ the L. s. court Is not bar or an
estopel against Iowa county, and why
the County is not affected by the pro
ceedings in that case, is. that Hast
ing, as Treasurer Of the State at the
time the suit was instituted could not
properly be regarded, as representing
the Interests Of the County in that
case.
It is questionable whether there
was any privity Of interest, even be
tween Jansen, the nominal grantee
in the trust deed, and the cestui que
! traSt But, however that m rht be,
where the grantee was 4 person selec-
ted with . view to his personal fitness
| for the cfice, and where Of course the
trust was express and personal, it can
| scarcely be claimed that a mere official
name can fairly be considered as repre-
senting the parties and all the parties
| for whose benefit the bonds are taken
But whether there was any prir5ty or
not between Jansen ne grantee, and
the ccstui q1le trast IC seems clear that
| the trust or agency was personal. and
not oficiaJ, and that the name Of State
! Treasurer being inserted in the deed
! is mere form IN order TO uphold the
/ security. and to give some name In
which the mortgage could be fore
iclosed. The legal title vested in
/ Jansen personally, and the addition
/ Of his official signature is mere de-
scriDtio personae. The State having no
/ beneficial interest in the securities, and
/ the duties Of the trustee not being
| german to, but entirely foreign from
the functions Of the Office Of State
! Treasurer, the strl st would not and
could not devolve upon the successor
Of Jansen. Moreover, the fact IS be
+ licved to be that neither Jansen nor
/ any Of his successors. ever accepted
the trust, or performed any duty
under It.
Another reason why that decree IS
noe a bar or an estopel. and ought not
to affect the County. Is, that the in
terest Of the County in the security
given to Jansen. was one of entire
notoriety. and perfectly well under
stood By Conan and Martin, the plain
tiffs in the suit in the United States
court, and thev should, therefore, be
required to have made the County a
party to that suit, if they seek 70
make the Judgment IN that case OF
anv effect against the County.
/ We conclude, therefore, that this
Judgment viii be, regarded as strictly
inter altos. and of'no force in conclud-
ing the rights Of the County Of Iowa
1t is said that the County. while
resisting the payment Of its bonds,
cannot enforce the security which II
holds under the second mortgage
This is not so. That mortgage was
conditioned that the Railroad Com
panv should pay the accruing interest
on the County bonds, and the pNnci-
pal at maturity And whenever any
interest should become due, and pay
ment be neglected or refused by the
/ Railroad company, the condition there.
/ by became broken, and the mortgage
might be foreclosed whether the
/ County ever paid the bonds or not>
/ The powers conferred on the Court
BIZ the third section are neither new
Unusual or improper, and were exer
I cised b. the United States Court II
the case Of Conan and Martin vs.
/ Railroad Company But whatever
they are, they are only discretionary,
and to be exercised BY the Court only
in the contingency that the Court
thinks the facts of the case warrant Il.
! The County claims that It's security
under the Jansen mortgage is para
mount 20 the security Of the other
$40 900 bonds subsequently lssueo
and purporting to De secured. by tkt
same mortgage. The law authorize:
( e, rr--