Burgess v. Hitt
Missouri Court of Appeals
Appeal from the Cape Girardeau County Circuit Court, J. D. Poster, Judge. The marshaling of assets is a well settled branch of equity jurisdiction,, but the rule'upon which it is based is never applied, “except when it can be done without injustice to the creditor or other party in interest having a title to the-double fund, and also without injustice to the common debtor.” Story’s Eq., Redfield’s Ed., sects. 558, 559, and 560 ; 2 Wasb. Real Prop.
Read the full summary
Appeal from the Cape Girardeau County Circuit Court, J. D. Poster, Judge. The marshaling of assets is a well settled branch of equity jurisdiction,, but the rule'upon which it is based is never applied, “except when it can be done without injustice to the creditor or other party in interest having a title to the-double fund, and also without injustice to the common debtor.” Story’s Eq., Redfield’s Ed., sects. 558, 559, and 560 ; 2 Wasb. Real Prop. (3 Ed.) 202, etseq.; 1 Wait’s* Actions and Del 352 ; Jones on Mort., sects. 1628 and 1629; Marr v. Lewis, 25 Am. Rep. 553; Fleshmanv.. Shepard, 30…
1Opinion of the CourtThompson, J.
The appeal in this case is prosecuted from a decree enjoining the sale of a tract of land under two deeds of trust, on the theory that the plaintiff has a judgment lien on a portion of the tract, and that the defendants ought to be required to resort to that portion upon which the plaintiff has no lien before resorting to that portion upon which the plaintiff has a lien — in other words, on the doctrine of marshaling securities. An insuperable difficulty in the way of sustaining the decree is that the plaintiff does not appear to be a judgment lien holder. He indeed recovered a judgment in a…
2Cases cited4 opinions
- Downing v. StillSupreme Court of Missouri · 1869
- Craig v. SmithSupreme Court of Missouri · 1877
- Phillips v. EvansSupreme Court of Missouri · 1876
- Stacker v. Cooper Circuit CourtSupreme Court of Missouri · 1857
3Cited by7 opinions
- Cross v. GouldMissouri Court of Appeals · 1908
- Ealy v. McGahenNew Mexico Supreme Court · 1933
- Creighton v. KeithNebraska Supreme Court · 1897
- Brown v. CurtissMissouri Court of Appeals · 1911
- Burgess v. AlbertMissouri Court of Appeals · 1891
2 more not listed; retrieve them via the Exa API.