, 1873-03-18
Judge Gary DisscCts tho Dill with an
UnWavCring Hand.
He Thinks it May Bo Suspected that
0omplainants Have q Case.
The Nature Of the Mortgage.':The hp-
poarance Of Mary Bostwick.
The Demurrer Sustained. Bill to
Be Amended-..seourity for
Costs to Be Given,


Judge Curry yesterday decided tho sovoral
points that Ind arisen In tho argument on tho
domurrora In tho Boatwiok-sktnnor suit, aus
tanning the demurrer.
The Court BALD tho bill was drawn with too lit
Ito care thoro waB too much oxtranooua matter,
and too little regard for established forms. From
tho RYorments, If they wore true, and from wllat
was loft to reasonable Inference and con-
jocturc, ono would suspect that tho plaintiffs
had 4 oaBe; but 1t was not ayorrcd in tho
BILL. uo treated tho bill as n bill to rodcom
from mortgage. Tho only aycr1ncnt aa to tho
making Of tho mortgage Was OH page 10: "Alil
said complainants flrthor show unto tho Court
that they arc informed aud belieyo that tho no.
tual price paid and ngreod to be paid to aaid
Mark Skinner, for snid southwest quarter OF 200.
a4es "a ss 5sS ss .ds q ovsa se1 n3s i
WIS not ayerrod to be 40. They are Informed
mud beliovo it is ao aud charge TINT ia SO, upon
information and heief, whether tho faot 1s 40 or
said Mark skinner to mid John DoBtwicl, to-wlt
Mny !, 4. D. 1866, said Doatwlok paid
gaid Skinner tho sum Of $4,000, md gave
to aatd Hkinnor Lis bond and mortgage
houg tho aum Of 914, 900, in iivo years from TINT
date, with i,,torost thereon amounting to tho
sum OF e1 900 each year, as follows: 81 900 In
yeer goo n two years s1o99 CO. in r. three rec
ysars ysars rom ay b. Isl is5s would bo
soticcI i l tIat tho bill did not state what tho
mortgage was upon; 1t might ua weu DO upon
son,c other than tho land deaoribsd IN tho bill.
had boon argued, tho Court was satisfied that
tho administration WAS not void for want Of
jurisdiction. Wlother tho statute required that
tho administration should hive boon in
Madison County or in Cook County, STILL
It actually having boen takon out hcre, what was
dono uudor it waa not void l,-conld not DO i'm
poaohcd collaterally. Tho only ground upon
which tho aots Of administration could 10
yoidod was for actual fraud, tho plaintitfs title
foreclosure which Waa alleged, the persona who
wero parties to that proceeding could not attack
tho proceedings 9no2llaterallyI n2 oven W upon tho
6y bill Of .rovlov. They could not flo d
bill for any other purpose 1nd then say tho do
creo must bo dlsrogarlod because Of fraud. As
to tile parties bound by the decree, tho widow,
boasd bsr aopha K Hos Basuiok sthoagh @ It was IL
. legged slo was not served with process, WAS Q
party to TIC suit, aud appearance was entered
FOR her. That appearance could not DO got rig
Of; 1t vas to be assumed that it vas right until
1t waB shown to hayo been withdrawn. All OF
the plaintiffs, except tho widow, would DO ex~
emptod from the operation Of the decree to
cersain oxtent, they not being made parties to
husband, having conveyed tl,elr interest to
John, suse!ta, charles, and Dora. Tho interest
Of Laura a. Bebor and Mnty A. Dunn would still
be outstanding and unaffected By the toreoloauro
could not satIsfy himself whether tue bill ought
to aYer notice OF not. Cases had been cttnd,
showing that the notice should be aTerrod IN tho
biu and others thet it Was unnecessary, yot the
great bulk Of the authoritieB showed that defend.
anita, who placed thoir datonao on tho ground Of
purchase for galuo must deny notice whether It
Il ayorrod in the bill or not. A logical result
es the {aet that tlis wa -. % eirtna9igo II %a7
anoe ct tho PLAINTIFF claim for relief.
Il would seom to bo unnecessary for the
plaintiff to anticipate that dofonso, and aTer
anything TO attack Or yo.a dstsnse W wh.en 81,
the defenao Of d bona dde purchase without no
tice, by his answer it devolved upon tie plaintiff
to prove the notice, and upon the defendant to
prove the purchase and the payment Of value.
Issue bringing that fact into quostion or an issue
was made Of the replication to the answer, which
ret up tho purchase without notice, that 1t waa
So o to hs sd b stsad sf s SIns n sfs Ss
himself IS to whether tie bill WAS sufficient
Or not without charging notice. This being d
bill to redeem, II must appear that the per-
Tho Court ThoEo was no allegation upon tho
subject. The bill charged that 81 Of Bostwios's q
purchase camo to Skinner, and he conveyed to
9ostwick. What became Of It did not appear
The ayerment on page 1s led to the Inference
thnt the mortgage made by Bostwiok Was upon
Ehese premises still tlero was 10 reasonable
presumption from the bill that the legal estate
Ssmenea 1 n Skinner The ss3Eegsttenaa IN the
tng III tho promises now Who has nny'
thing in them is not shown. Tho bill is
20 general, vague, loose, uncertain, and defoc. q
Is prenont shape. AZ to the parties, excepted.
those WHO aro alleged to havee participated IN
tome wrong-doiug, the general aVermont waf
ehnt theao persons claimed some "interoat, pos,
which said peraons Is subject and eubordi.
nato to tho right and title of these plaintiffs,
and, further, f" that tho plaintiffs cannot tel
precisely what intorcst was olnlmed IN a'lct
lands by such several personB," aud that the
plaintiffs aro the owners In foo simple, subject
only to the rights Of said Skinner or aaaigns al
mortagee thereof, a,,d that all othor persons
planning title thoroln, claim tho sumo onl,
no estate, right title, or interest n said land
which III not subject to tho plantitfs' rights ant
little In said lands" II might be that tho plain
afo @ a 1so Sar
derlyea from Bkinner and Cornell, or one or tht
teyance by Skinner to Dostwlck, but that fol
no saa ea or agans hes @ r he
stated that they claim through shnno,
and Cornell, but whether they CLAIM
subsequent to 5klnnor'B conveyance to DoBt
Hiok or in what manner they claim
f7as not stated. The moro general statemon
was not sufficient, as the Supromo Court bad
dcoidod (Legal Netus, I'd vol pago 210) that IL,
facts upon which tho priority Of claims depended
must be aYcrrea In the bill, or olBo tho decrot
was not conclusive upon tho rights Of th
parties; TINT Is, TINT tho parties worc not ostop
pod by tho decroe If there were no averments ],
ths bill which showed facts making ono It'll
paramount to the other. There was no aver
mont which showed with certainty what premise
wore mortgaged.
Tho matEor in regard to the jurisdction Of til
County Court, to tako administration OF tho ea
tate was Irrelevant because tho jlrlsaictton Q
khs Court could not bo attacked III that Why
Tho legal estato, which must bo before the Cour
upon bill to redeem, was loft to conjecture, all
he did not know where It VAS. The aysrment q
to tho notice OF the several parties was too looa
Ind 11noortain to giye tho Court Jurisdiction t.
ldjudoato upon their claims. Upon, ties
grounds the demurrer must be enstaipod; IL
Interest Of tho plaintiffs was not barrod by th
h p1 rify tn nm