Legal Opinion

Chapin v. Walker

United States Circuit Court

Decided November 15, 1880Published

This is a bill' in equity to foreclose a mortgage executed by respondent Dempsey R. Walker to John C. Burrage, conveying certain real estate to secure the payment of a promissory note.

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This is a bill' in equity to foreclose a mortgage executed by respondent Dempsey R. Walker to John C. Burrage, conveying certain real estate to secure the payment of a promissory note. The bill alleges default in the payment of said note; that complainant is the holder and owner of the same, and entitled to foreclosure; and that the other respondents, including A. A. Brockway, have, or pretend to have, some claim to, interest in, or lien upon, said mortgaged premises; but that said claim, interest or lien is subsequent and subordinate to the lien of complainant. The answer of respondent…

1Opinion of the Court

McCrary, Circuit Judge.

There are several objections to granting the relief sought by the respondent.

1. In the first place, if he were entitled in this case to that rebel, it would be necessary for him to seek it by a cross-bill. It is well settled that any affirmative relief sought by a defendant in an equity suit must be by cross-bill, and can never be granted upon the facts stated in the answer. Story’s Eq. Pleadings, Redfield’s edition, Sec. 398 A.; McConnell v. Smith, 23 Ill., 611; Armstrong v. Pierson, 5 Iowa, 317.

2. It is also well settled that, according to the practice which prevails…

2Cases cited7 opinions

  1. Dial v. ReynoldsSupreme Court of the United States · 1878
  2. Armstrong v. PiersonSupreme Court of Iowa · 1857
  3. Palmer's administrators v. MeadSupreme Court of Connecticut · 1828
  4. Bull v. MeloneySupreme Court of Connecticut · 1858
  5. McConnel v. SmithIllinois Supreme Court · 1860

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