Burham v. Fritz
United States Circuit Court
This cause is now before the court upon the complainant’s demurrer to the cross-bill of the respondent B. F. Elbert. The complainant obtained in this court a decree for the foreclosure of a mortgage against the mortgageor and all incumbrancers except said B. F. Elbert, who was named in the bill but not served with process. On the twe'nty-ninth day of. August, 1879, the master sold the mortgaged premises in pursuance of the decree.
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This cause is now before the court upon the complainant’s demurrer to the cross-bill of the respondent B. F. Elbert. The complainant obtained in this court a decree for the foreclosure of a mortgage against the mortgageor and all incumbrancers except said B. F. Elbert, who was named in the bill but not served with process. On the twe'nty-ninth day of. August, 1879, the master sold the mortgaged premises in pursuance of the decree. On the twenty-fourth day of April, 1878, prior to the foreclosure proceedings, said B. F. Elbert recovered a judgment in the district court of Monroe county, Iowa,…
1Opinion of the Court
Love, D. J.
The question thus presented has, we think, been fully decided by the supreme court of the state of Iowa in Diddy v. Risser, 55 Iowa, 699. Although that case was decided upon grounds by no means satisfactory to our own judgment, it is our duty to follow it as a law of property in this state. It is too obvious for discussion that we cannot, by disregarding the rule laid down in that case, set up a different rule of property for the federal courts in this district.
We are wholly unable to distinguish the case of Diddy v. Risser from the case before us upon any material grounds of fact…
2Cases cited2 opinions
- Brainard v. . CooperNew York Court of Appeals · 1852
- Diddy v. RisserSupreme Court of Iowa · 1881