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

! erroneous the decision might have
been. The District Court might differ
from the pleader and conclude that the
Jansen mortgage was superior to the
other, Notwithstanding the county's
default. But the question of the pri-
ority of the Conan & Martin mortgage,
is prominently and strongly urged in
their complaint; and that priority
traced to the only source from which
it could be derived-is clearly involved
in the pleadings, but, being a question
Of law, it is not admitted by default of
the county. The District Court could
and should have passed upon this
question, one way or the other. If it
has done so, though enormously, the
county is bound by the decree till re-
versed. If it has not determined 9TH
erwise, l think the county is entitled
to what it claims in the present action,
sale of the railroad and appurtenant
property in payment of the bonds of
the company in its possession, both in
terest and principal being now due
| thereon.
So the whole controversy hinges up
on the question, What has been deter
mined by the decree Of the District
Court in reference to the priority of
the Jansen and the Conan & Martin
mortgage? The decree, so far as it
touches upon this point, reads as fol-
lows. 'sAnd it is further ordered, adj
judged and decreed that the defend
ants, the Mineral Point Railroad Com
pany, Samuel d. Hastings, Treasurer
of the State of Wisconsin, and John
NJ. Keep, and all persons claiming or
to claim from or under them, or either
Of them, since the commencement of
this cause, be forever barred and FORE
closed of and from all equity or equi-
ties of redemption, or claim of, in and
to said premises so mortgaged," &c.,
&c. This decree is in the usual form,
and has been often interpreted by the
courts. Its only effect is, to preclude
subsequent or subordinate lienholders
from thereafter enforcing their securi
ty; but it leaves the question undeci
ded whether the liens specified in the
decree are, or are not inferior to the
plaintiff s incumbrance? If there is
a controversy between the plaintiff and
defendants in reference to the prefer
ence due to their respective liens, that
question should be determined by the
courts; but heordinary decree barring
inferior membranes, has not, and
ought not to be construed by the courts
as decision on the contested question
of priority. The strong and out-crop-
ping allegations in the Conan & Mar
tin bill of complaint, asserting the SUI
periority of their mortgage. over that
of Jansen, finds no sanction in the
decree. 1t only affects the Jansen
mortgage provided it is subordinate
lien to that foreclosed in the District
Court. In my view, the Jansen mort
gage is superior lien, and therefore
it is not affected at all by the decree
of the District Court of the United
States, and the county of Iowa, owning
all the bonds of the Mineral Point
Railroad Company secured by that
mortgage, is entitled to the relief ask,
ed for in its complaint.
The following cases give the legal
meaning of the ordinary foreclosure
decree, foreclosing the defendant of
and from all equity Of redemption and
claim of and to the mortgaged premis-
es, &c.: 5 Seldom, p. sos, Lewis VS..
Smith. Also, Williamson VS.. Probos-
co, 4 Halstead, chap. 5, p. II. Strobe
VS.. Downer, IS Wis. Rep. p. IA.
Straight VS.. Harris, IA Wis. Rep. p.