"
94, .. FEDERAL REPORTER. .... , ,
'
the ordinary course of bJlsiness that time did not ar'to., for it 'is l,md eertlfythe fitlefor a purchaser untIl he has if, it'is found to' be gOOd. 'Now, Bailey did not acsale ;Which. W<,lOdtlwn offered him until January 27, 1893,)i'ud;long before'that time Woodman had become the owner of In()rtgage, the the 'party' interested adformer, principal; in negotiations far their sale; and he ,was conducting In his own interest, and not in the 'interest of Bailey. He had, therefore, ceased to be Bailey's agent, and his notice and knowledgE' of the appellants' claim to his forl;Iler principal., 'rhe presumpcannot be tion, which arises from"his adverse, interest, that he did not communicate his is shown by th,e record to be in aceoMance with the fact. He n,everinformed Bailey of tbe appe11ants' claim that tbe,. mortgage ,was' void. He never, notified him, tbat he was the real owner and vendor of the note and mortgage whi<;h he caused tbe ,trll!!!t company to to All these 'material facts' he concealed, from his for,merprincipal, just as the law presumes from interest do; and in tbis way Bailey bought withqut either actual,'or constr,uctive notice of any defect or claim o(defecU Il tbe There was no error in the conclusion of tMcolu:t below that tlieBaileys bona fide purchasers for value, without notice of the appellants' c1aim, and the decree below is affirmed.
:Wq.ey
CLARKE v. NORTHWESTERN MUT: LIFE ": ... , ' . '
;
CO. et at .
(Circuit Court of Appeals,Eighth Circuit.
April 17; 1800.) .:
No. 1,088: 1
Under(Jode Civ. Proc.. Neb. 497a (Comp. St. p. 595), providing for redemption :bY the owner o'f' premises sold under foreclosure, the owner ma:r redeem, where other th8!1l'theplaintiffwas purchaser, by paying the purchaser, or tendering into eourt before the confirmation of the sale, the amount oJ his bid, with, 12 per cent. interest from the llate of sale. S,f.ME-;-MTICIPATING QUESTIONS AS TO EFFECT.
"..
9
not' take' jurisdiction of a petition of the. owner of the equity of redemption 'asking leave to redeem' from a foreClosure sale, and the advice and in'struction of the court astotbe :effect of redemption, and the:nature of the title that will accrue to t1\e redemptioner,
It Olsnot ,the bmJiness of courts to ,anti<:ipate controversies, and it will
. .
a..
B.4.ME:
Where the court a. petition the owner of the equity of redewption asking leave to redeem from a foreclosure. sale, it cannot pass on'the question of the effect of the redemption, and the rights and title RCquired by it. .
'f
Appeal tbe Oircuit :<;Jourt of the United States for the District of Nebraska.. ,: On the 31st. M JaUllal,'Y, 1888, William E. and Mary A. Clarke made. and delivered their ,prO,missory ]lote for $6,500 to the Korthwesteru Mutual Life Insurance Compl,luy, and. to secure the payment of the same, made and de-
CLARKE V. NORTHWESTERN MDT. LIFE INS. CO.
263
livered to the insurance company' their mortgage deed on the real estate here in controversy. On the 17th of .January, 1896, Artemus }I, Clarke, the appellant, purchased from the mortgagors, William E. and :Mary A. Clarke, the legal title to the mortgaged premises, subject to the lien of the mortgage, but did not agree to pay the same. On the 21st of August. 1896, the insurance company tiled its IJiIl in equity to foreclose the mortgage in the circuit court of the United States for the district of Nebraslm, in which suit Artemus M. Clarke, the appellant, and all other persons having an interest in the mortgaged premises, were made parties. In the foreclosure suit, the }lerchants' National Bank of Omaha, the Xebraska National Bank of Omaha, and the Nebraska Savings & Exchange Bank were made defendants, and filed answers setting, forth the amount and nature of their respective liens on or interest in the land. On the 23d of December, 189(j, the court rendered a decree in which the following were found to be the order and amount of the several liens on the land, namely: First lien, mortgage to Xorthwestern Mutual Life Insurance Company, $7,129.39; second lien, mortgage to Merchants' National Bank of Omaha, $8,OH2.70; third lien, judgment in favor of l'\ebraska SaVings & Exchange Bank, $3,246.56. And it was decreNI "that unless the defendant pay the complainant the said sum of $7,129.39, and interest thereon from the date hereof at the rate of seven per cent. per annum, together with the costs of this suit, within twenty from the date hereof, said mortgaged premises be sold at public vendue, in the manner provided by law, to the highest and best bidder for eash, and, after eonfirmation of said sale by the court, the proceeds thereof applied-First, to the payment of the costs of this. suit and expenses of sale; second, to the payment of the amount hereinbefore found due the complainant, and interest as aforesaid; third, to the payment of the amount found due the defendant }lerchants' National BanI,; fourth, to the payment of the amount hereinbefore found due the defendant William K. Potter, receiver of the Xebraska Savings & Exchange Bank,-and that the balance of thejlToceeds, if any, be brought into court to abide the further order of the court." The order of sale was stayed for nine months, after the expiration of which time, and on the 1st day of December, 1897, the mortgaged premises were sold under the decree, and purchased by the Merehants' National Bank of Omaha for $10,150. On the 30th of December, 1897, the appellant filed in the court below a petition for leave to redeem the mortgaged premises. After setting forth the purchase of the mortgagor's equity of redemption, the pl:tftion proceeds: "Your petitioner further says that as the owner of said real estate in said deed deseribed. and whieh is the same real estate as that in controversy in this suit, your petitioner is ready, willing, and able, and now offers, to redeem said real estate from the lien of the decree herein, except that your petitioner is in doubt, and, although he has taken legal adviee 'on the question,. he is still in doubt, as to the amount to be paid, the effect of payment, and the nature of the title that will aecrue to your petitioner as a result of said payment to redeem said property from the lien of said decree, and therefore your petitioner asks the advice and instruction of the court in that behalf. Nevertheless, your petitioner avers, upon information and belief, that the purehaser at said sale has made no payment on its bid, and that your petitioner is entitled to redeem said premises from the liens of the parties hereto by paying the amount of the complainant's claim, with interest and costs. Wherefore your petitioner prays for an order adjUdging and deereeing :your·· petitioner to be the proper person, and entitled, to redeem said real estate from the lien of said decree, and determining the exact amount to be paid by your petitioner in order to redeem the same, and adjudging and decreeing tllat by so redeeming the same your petitioner will take title thereto free and elear from any right, interest, lien, claim, or deJlland whatsoever of the complainant, or of any of the defendants hereto, by reason or by virtue of any of the mortgage deeds, jUdgment liens, or other interests whatsoever of any of the parties to this suit, and that, upon so redeeming the same, the cloud cast upon the title to said real estate by the respective claims of the several parties to this suit may be removed, and that your petitioner may have such other and further relief in the premises as may he just and eqUitable." Upon consideration of this petition, the court entered the following decree: "It is therefore considered, adjudged, and decreed by
264
94 FEDERAL REPORTER.
tl).e'court that the defendant, Artemus M. Clarke, be,and he is hereby, pennitted to, redeem said premises from said sale by paying to tlle complainant h,ereiIJ,,' !!{orth}Vestern Mutual Life Insprance Company, the amount found due it in said decree,with interest, andaH the costs of said suit,and by paying to the said Merchants' Kational Bank twelve per cent. interest upon the alllount of its bid,from the date of said sale to the time of such pa:yment. amI that. upon redeeming said premises as aforesaid, the said Artemus M. Clarke take the same snbject to the several liens of the several parties to this suit. except the complainant, and that, unless the. said Artemus M. Clarke redeem said premises as aforesaid within five days from this date, then that saill sale be and stand ratified, confirmed, and malic absolute, and that a deed to the premises so sold be made in the nsual fonn, and delivered to said purchaser. according to the course and practice of. this court. and the laws of the state of Nebraska in SUCll case made. and From this decree Artemus l\1. Olarke, the petitioner, appealed to this court. The assignments of error are that the court erred in not decreehlg that the appellant was entitled-"First, to redeem the premises f,OIIl the, sale by to the Merchants' National llank, the purchaser, the amount of its bid, with twelve per cent. interest thereon the date of the sale to the date of redemption; and, second, upon making such payment, that the, appellant take the same title to said premises that the NatiQnal Bank would have taken if redemption had not been made, and the premises had been conveyed to the bank as purchaser at the foreclosure sale."
James H. Mclntosh,for appellant. GeorgeE. Prichett, for appellee Merchants' Bank. Before OALDWELL, SANBORN, and THAYER, Circuit Judges. , CALDWELL, Circuit Judge (after stating the facts ,as. above). If the appellant desired to redeem the premises in question, he should have paid the purchaser (who was not the plaintiff in the action) at the foreclosure sale, or into court before the confirmation' of the sale, the amount of its bid, with 12 per cent. interest thereon from the date of the sale to the date of redemption. Code Civ. Proc. Keb. § 497a (Comp. St. p. 59!)); Swearingen v. Roberts, 12 Keb. 333, 11 N. W. 325. Itlstead of d(jing this, the' appellant, without redeeming, or paying any sum to effect a redemption, or becoming bound to do so, filed a fulling petition, by which he sought to ,find out, before he made the redemption or parted with any money or incurred any liability, what rights he would acquire by making it. It seems higb)y probable thl\t, unless he has the assurance in advance that his construction of the statlltewill prevail, 'he will not redeem. It is not the business of courts to anticipate controversies or try moot cases. The appellant had no right to delay'the of'thesale and theredemptiq,n, and keep the out of title. to the premises, or the m9IJ,ey it paid for them, until it should be determined what he would get if he made the redemption, and whether it would be profitable tomake it. 'The ca:;eis not one,for a bill of interpleader; and the petitioner is nota sustains no trust relation that entitles him to ask the, advice and direction ofa court of equity as to what he shall do in the premises. The lower court shouldhave dismissed his petition. But it took juril3diction of the same, and in so doing erred in fixing the ampunt :which the was required to pay to effect the redemption, ,by not .following the rule prescribed by the supreme court of the state of Nebraska in Swearingen Y. Roberts, supra, and in undertaking to determine the effect of the redemption' upon the
RUTLEDGE V. WALDO.
265
rights of the mortgagees arid lienholders, whose mortgages and liens were prior in point of time to the acquisition by the appellant ofthe mortgagors' equity of redemption in the premises. vVe decide nothing more than that, in determining the amount necessary to effect redemption, the rule prescribed by the Nebraska statute, as construed by the supreme court of that state, should be followed, and that the effect of the redemption, and the rights acquired by making it, must be left to be determined when a case shall properly arise presenting those questions. As the appellant may have been misled by action of the lower court in the premises, the order of this court will be that the decree of the circuit eourt be reversed. and the cause remanded, with directions to that court to enter an order immediately upon the receipt of the mandate of this court giving the appellant the right to redeem, as he may be advised, within 10 days after the entry of such order. Ordered accordingly.
RUTLEDGE v. WALDO et a1. (Circuit Court, S. D. York. "ray 12. 1899.) MATTERS OF DEFElS'SE TO REVlvon-BuRDEN OF PnOOF'.
In defense to a bill of revivor to carry into effect a decree in a suit which has abated by the death of the ol:iginal complainant, the defendants may show that the decree was rendered without jurisdictionovPl' their persons, but the burden rests on them, in sueh case, to prove that the attorneys who appeared for and assumed to represent them In the case acted without authority.
In Equity. R. H. Worthington, for complainant. Preble Tucker, for defendants. WALL.A.CE, Circuit Judge. This is a bill of revivor to carry into effect a decree against the defendants in a suit which has abated by the death of the original complainant. While it is no doubt true that generally the sole questions before the court in such a bill are the competep.cy Q,f the parties and the correctness of the frame of the bill to revive, I have no doubt that the defense introduced to the present bill, that the original decree was obtained without jurisdiction of the persons of the defendants, is good if established by the proofs, because, in that event, the o,riginal decree would be void, and no subsequent proceedings could be founded upon it. I am of opinion that the defense is not established by the proofs. The burden of proof is upon these defendants to establish that the appearance in their behalf by the attorneys who assumed to represent them in the original action was unauthorized. Hill v. Mendenhall, 21 Wall. 454; Osborn v. President, etc., H Wheat. 738. These attorneys were the law firm of Tucker, Hardy & Wainwright. The defendant :\frs. Tucker was the wife 9f one of them, and the defendant Miss vValdo was the sister of Mrs. Tucker. These attorneys had represented the defendants in other litigations of the same character, pending about the same time. when they appeared for them in the original action. It cannot for