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

/ the " hole, reported back without
amendment, and passage concurred
in; April 5, signed by the Speaker
april 6, signed by the Governor.
BY authority Of the provisions oI
/ this act, an action was commenced in
/ the Circuit Court for Iowa County,
/ by the Board Of Supervisors of the
County of Iowa. CT the Sd Septem
her, 1866, against the Mineral Point
Railroad Company and al other par.
/ ties claiming any interest, for the
purpose Of foreclosing the aforesaid
second mortgage given by the Rail
road company to Edward H Jansen.
Most Of defendants have appeared and
| filed demurrer to complaint, and the
/ case now stands on demurrer No ap-
plication has vet been made for Re
ceiver, and the defendants have none
of them b9en disturbed in the posses.
sion of the property
! POINTS SUBMITTED BY THE COUNTY OF
IOWA, AGAINST THE REPEAL OF THE
LAW.
The law does not confer any new
rights upon the County, nor any pow
ers upon the court, which 1t did not
already possess.
1t is simply a decIaratory statute,
such as are very common, and often
highly useful, Blackstones Com. SO. 4.
The right Of a cestssj g,si trust, 10 bring
q bill In equity to enforce equitable
rights, is we'll settled, and formerly,
whore the trustee had only a legal IL
/ tie, and the equitable title was in a
ccstut qtsj trust, the trustee could not
maintain bill in equity; and even
now must join the cest,a qgtj trust as a
party; Hill on Trustees, SAB mari =;
Adams Equity, 3I8 mari; Bleeker
vs. Bingham, Paige, Oh. Rep, 246 :;
Bradstreet vs.. Schuyler, Barb, Oh.
R., COS.
The decree Of foreclosure in the
United States court, in the case Of
Conan & Martin VS. Mineral Point
Railroad Company and others, is not
a bar or estopel to the suit Of Iowa
County circuit court, in favor of Iowa
County against the Mineral Point
Railroad Company and others norris
the County in any manner affected J"
by the proceedings IN that case, indie
pendent Of the act Of 1866. now sought
to be repealed, for the following rea-
sons:
A plaintiff in a foreclosure suit can
not call upon prior mortgage Of
the same mortgagor to put his title
in issue. He has the right to assume,
that the proceeding Is to be conduct
ed on the theory, that his lien is par
amount to that Of the plaintiff. And
even where the bill contains an ale
cation. that one, in fact, holding a
prior mortgage, and is made defend
ant IN 4 foreclosure suit, claims an
interest in the premises, which inter
est, if anv, accrued subsequently, to that
of the plaintiffs mortgage, and upon
which Judgment is taken by default,
the party is not barred by such judg-
ment from maintaining suit TO fore
close a prior mortgage held by him
on the same premises. Lewis vs.
Smith, 5 Selden, SOP. Strobe vs..
Dowuer, I3 Wis, R. 10 Straight
vs.. Harris, a Wis, r. SOC
The question then arises, Was the
mortgage to Jansen a prior lien to
that Of the mortgage to Conan &
Martin?
The Jansen mortgage being exc
cuted first in point Of time and duly
recorded, viii remain as against every
a first mortgage, unless one should
be thereafter made in conformity with
| the power reserved by the mort tgagor
(Railroad company in the Jansen
mortgage, and in conformity with the
/ act Of 1853.
That reserved power was to issue
another mortgage, to be called a first
mortgage, which should be the first
/ lien on the Railroad and other pro
pertv. but it should not be issued to
secure bonds for a greater amount
than $4,000 per mile, nor bearing
more than eight per cent. interest.
+ Il Is admitted, that the $4,000
/ per mile would be $500, 900.
There is no doubt, that the railroad
/ company attempted 70 execute this
i reserved power, by issuing the mort.
gage to George L. Schuyler, dated
January 2, 1854, recorded February
p, 1854, and the only particular in
which that attempt failed to comply
/ literally with the conditions and
! limitations Of the reserved power, Is
that the mortgage is for S500,00G IN
stead of S320,000
1t was a valid mortgage unques
/ tionably And although issued fol
more than S320.000, it became first
+ lien for that sum
Any excess in the execution OF a
+ power, whether the power be created
by deed, by viii or by statute, will
not avoid the execution, except fol
the excess. Campbell vs. Leach
Amb 740: Sugden on Powers. vol
?, chap. 10, II, page 94-2lt, 6tf
! Ed: Commissioners Of Knox Co. vs.
Nichols, IA Ohio State r, 260-
Another reason why the decree II
the Conan & Martin case. cannot II
any manner affect the proceedings IL