Dodgeville chronicle. [volume] (Dodgeville, Wis.) 1862-current, 1868-09-18

Their bill, however, does not deny that
bonds were issued secured by the Schuyler
mortgage, but declares that none were ever
sold or negotiated by the authority
of the company. The bonds and mort.
gage, it seems according to their complaint,
had been delivered to Schuyler, who de-
livered them to Conan & Martin, except
30. which reached the hands of John M.
Keep. After such delivery of the
mortgage, and bonds secured thereby, to
SCHUYLER, and after some of them got into
circulation, when in fact all of the bonds,
from aught that appears in the bill, may
have belonged to Schuyler himself, it can
not be contended that the mortgage to him
was mere .escr0o. So there are no ale
cations of fact dehors the Schuyler mort
gage itself, in Conan & Martins COM
plant, which if admitted by the county,
would deprive that instrument Of its posi-
ton as the first mortgage, if it ever had
that position. But not adopting the the
ory of the county's complaint, that the
| Schuyler mortgage was the preferred one.
it is not material that should decide the
question correctly whether the allegations
in Conan & Martins bin, undenied by the
State Treasurer, the county's trustee, did
or did not convert that instrument into a
legal non-entity.
S. D. Hastings, the State Treasurer at
ed their foreclosure proceedings in the
District Court Of the United States, as
conclude, was the proper party to rep
resent all holders Of bonds secured by
the mortgage to his predecessor, JAMS
sen. Hastings was made a party, and
summoned to answer Conan & Martins
bill of complaint. He informed the
county of Iowa of the commencement of
the action, and that the county might
use his name in making defense; but
neither Hastings, the trustee, nor the
county itself, made any answer. The eff
|. feet of teis neglect is, that the county has
admitted, and is bound by every material
allegation in Conan & Martins bill of
complaint which might have. been denied
by answer. | mean allegations of fact
Statements of legal conclusions In their
bill would not bind the county, if these
conclusions are erroneous. Adhering to
the opinion that as a question of law,
the Conan & Martin mortgage was not
the preferred instrument intended by the
two moitgage-act, and that being suisse
quent in date to the Jansen mortgage,
it is subordinate thereto, the final and
conclusive inquiry is--has the decree of
the District Court passed on this ques-
ton, and determined, however erroneous
ly, that the Conan & Martin instrument
was entitled to the priority /? If that
court has so done, the county is bound by
the decree Of that court, not having APP
pealed ther efrom. 1t cannot be pretended
as | think-th the District Court had
no jurisdiction over the county by virtue
of process served on its trustee, or no iu-
risdiction over the subject matter. It is
not question as to the nullity or validity
of the decree, but it is question of the
Interpretation of the decree itself. Has it
determined and adudged the priority of
the Conan & Martin mortgage to that of
Jansen, under which the county claims {?
The county, not having appeared, must
abide by an adverse decision on this ques-
tionof priority, if any decision was made.
The language of the decree is set forth in
the finding of facts. 1t is not pretended
that the decree passes On this question in
express terms; but it is contended that
the county has admitted, by neglecting to
answer every material allegation set forth
in the Conan & Martin complaint. This
is correct position if distinction is
made between allegations of fact and those
of law. Only the former are admitted as
the effect of a default. The decree of the
District Court, taking the bill of the plain
tiff as confessed, may be regarded as en-
bodying the entire bill within itself, as the
finding of the court, so far as matters of
fact are concerned. The plaintiff in the
District Court, could not have asserted the
priority Of their mortgage in stronger
language than they have used "That
the said mortgage to Edward H. Jansen
and the debt thereby intended to be Sc
cured, was and is subject and subsidiary
to the mortgage or trust deed aforesaid
to your orators, CONAN & Martini
and the debt thereby intended to be
secured and that said mortgage or
trust deed to your orators has, and Of
right ought to have precedence to, and
priority over the said trust deed to
the said Jansen, and to all other liens
and membranes whatsoever, on the
said Mineral Point Railroad" It was
contended by the counsel for the coun-
ty, that if the court should find that,
for any reason, the Jansen mortgage
was entitled to preference over the
Conan & Martin mortgage, that the
latter mortgages, in a suit for foreclo-
sure, could not compel the trustee un-
der the former mortgage to litigate the
question of priority unless they should
state some fact in their bill impeaching
the validity of such mortgage, as that
the mortgage to Jansen was paid off,
OF that it was given without considera.
ton. In the contest for preference
between these two mortgages, there
was no extraneous fact alleged by Co.
man & Martin impeaching the validity
of the Jaussen mortgage. The plead.
ing, I think, was clearly sufficient to
justify the District Court in passing
upon the question of preference strong.
ly asserted therein.
ri In the present action, wherein Iowa
county is the plaintiff, the complaint
insists that the Schuyler mortgage is
the preferred instrument, superior to
the Jansen mortgage; yet there is no
fact extraneous to the law and the con-
tents of the mortgages themselves, up
on which this claim of superiority is
loooJ TIL &r,,o oncuro, - a. II 49,