CORNELL V. GREEN.
"A court of the United States Is not prevented from enforcing Its own judg· ments by the statute which forbids it to grant an Injunction to stay proceedings In a' state court."
The doctrine here announced has been followed by numerous deci sians in the federal courts. Railroad Co. v. Scott, 13 Fed. 793; Jesup 'V. Railway Co., 44 Fed. 663; Central Trust Co. v. St. Louis, A. & T. Haute Ry. Co., 59 Fed. 385; Lanning v. Osborne, 79 Fed. 657; & 1. R. Co. v. Peoria & P. U. R. Co., 82 Fed. 943. After a careful examination of the cases cited by counsel for the defendant, the court fails to find that they contravene in any respect the doctrine sustained by the authorities just cited. The demurrer will be overruled.
CORNELL v. GREEN.
(Circuit Court, N. D. Illinois. October 8, 1897.)
A foreclosure bill was brought against tbe mortgagors and their children and against "1'., B., and C., all of whom are residents, · · · and guardians of said minor .children. the said T. being also one of the exec· utOl'S of the last will of [the mortgagorl and others," "all of which persons and 'corporations before named are made defendants herein." The bill also aver:'ed conveyances fmm the mortgagor to said 1'., and that "the above-named parties against whom this bill Is brought have or claim to have some interest in the premises * * * by lllor,gage, judgment, conveyance, or otherwise," and that each and all of the defendants have nC'glecied to pay the debt. Held,. that T. was made a partJ' in his individual capacity, even though the prayer for process did not contain the names of all the parties, as required by the equity rules. Tile subpnma in a foreclosure suit was directed against the mortgagor, and "1'., B.. lIud C., guardian, etc., and '1'., executor, etc.," and recited, "\Ve commaud you, and everyone of you, to appear," and "the above-named defendants are notified that unless they, and each of them, shall enter tlwir appearance," etc. The return recited personal service "upon T. as guardian 11ml T. as executor," Held, that T. was sufficiently served in his individual capacity. A mortgage was foreclosed on the "south half" of a certain section. The master's deed recited that he sold the "south haif," and then recited: "Now, therefore, this indenture witnesseth that the said [master] * * * does convey the north haif." Held., that the word "north" is presumptively a mistake, that it may be rejeeted, and that without the substitution of any other word the deed is operative as a conveyance of the south '
Robert Rae and F. B. Dyche, for complainant. Geo. R. Peck and C. W. Ogden, fOl' defendant. SHOWALTER, Circuit Judge. On November 27, 1875, Mrs. Green exhibited in the circuit court of the United States for the Northern district of Illinois her bill of complaint for the foreclosure of two mortgages. Mrs. Sarah H. Gage, widow of the mortgagor, and a number of other persons and a number of corporations were made parties defendant. Certain of the defendants answered; others weI'e defaulted. The cause was referred to a master, and a final
decree ofAol'eolosul'e wasentemp,. onnis report qn July 31, 187(}. Pursuant to: thig;·decree·a'sale was made by the master, and Mrs. Green became the purchaser of the mortgaged property on: the 7th of December, 1876.8beentered into poS&ession pursuant to ,her purchase,.andhas sinGe remained in possession. Afterwards, and on the 3d .of Februal1y;'1877; she received the master's deed. The bill in the present case wasfi1ed July 29, 1896. Prior to the foreclosure above menUoned,and in December, 1874, George W. Gage, the original mortgagor, 1;liswif:4'\ Mrs. Sarah H. Gage, joining him in the conve;yance, had nliep.ated the property, subject to the two mortgages, to one William F; t:rucker. Tucker afterwards died, and long after the foreclosure the heirs of Tucker conveyed to this complainant, Cornell. The present bill is for redemption. The fundamental claim is that the interest of Tucker was not cut off by the foreclosure mentioned; It is said that on a proper construction of the b.ill of complaintjn that case Tucker was not a party defendant; and, again, assuming him to have been a party defend.ant, that he did not appear,and was not served with process. The foreclosure bill reads in part as follows:
"Your oratrix, Hetty H. R. Green, who is 8. resident of Bellows Fallll, In the state of V!!rmont, and 8. citizen in the said last-named state, brings this, her blll of complaint, againstSllrah.H. Gage, a resident of the city of Chicago, Illinois, a the state of IIll'nois, and the widow of the late George W. Gage, deceased, aM executrix of his last wlll and testament; Eva Gage, Mary B. Gage, E. S. Gage, Allee Gage, George W. Gage, Jr., and David A. Gage, Children of said GeorgeW. Gage, deceased, each of said children being now residents of said city of Chicago, and citizens of the state of Illinois, the , said two last-named children, George W. Gage, Jr., and David A. Gage, being minors; Wllliam F. Tucker, Joseph K. Barry, and John W. Clapp, all of whom are residents of the county of Cook, state of Illinois, and citizens of said lastnamed state,and guat;dians of said minor children, the said Wllliam F. Tucker being also one of the executors of the said last will and testament of said George W. Gage, deceased; Louis L. Coburn, a resident of Chicago, and citizen of the state of Illinois [here follow the names of a large number of other persons and of a number of corporatlonsJ,-all of which persons and corporations before named are made defendants llerein."
In a subsequent portion of the bill the conveyance from Gage and wife Of December 18, 1874,to said Tucker, of all the mot'tgaged premises for the consideration of $24,000, subject to the two mortgages, is averred. It is then set forth "that said above-named parties against whom this bill of complaint is brought have, or claim to have, some interest in said premises described in said trust deed by mortgage, judgment, conveyance, or otherwise"; and, afterwards, that Gage and his executors, "and each and all of them, and all of said defendants, have hitherto wholly failed and neglected, and still do neglect, to pay" the debt. The prayer for process is, "May it please your honors to grant to your oratrix a writ of summons issued out of and under the seal of this honorable court, aocording to the rules of practice of said court, directed to the said Sarah H. Gage and the other defendants hereinbefore named, commanding them, and each of them," etc. H seems to me very clear that William F. Tucker is made a party defendant on the face of this bill. Complainant says she "brings
·CORNELL V. GREEN.
this.; her bill of complainant, against · · · William F. Tuck· er, Joseph.fIr. Barry, and John W. Clapp, all of whom are residents of the county of Cook, state of Illinois, and citizens of said lastnamed state, and guardians of said minor children, the said Wil· liam F. Tucker being also one of the executors of the last will and testament of said George W. Gage, deceased, * * · all of which persons * · * are made defendants herein." If the question were whether or not ,Tucker, in his, character as guardian of the minor children, was made a party, some criticism might be made on the phraseology of the bill, but it seems to me to be beyond controversy that Tucker himself is named and described as one of the persons against whom the bill is brought. The two minor children were themselves made parties to the foreclosure bill. Summons was issued against them and served on them; and a guardian ad litem, appointed by the court. appeared and answered in their behalf. It is predicated of William F. Tucker that he was a resident of the county of Cook, in the state of Illinois, that he was a citizen of the said state, and that he was one of the guardians of the two minor children. It is also said of him that he was one of the executors of the last will and testament of said George W. Gage. It is also stated in the bill that Tucker himself was the owner of the equity of redemption, to cut off which was the very purpose of the bill; and as one of the persons named in the list of those who were sued he is expressly made a defendant. There is no reason for saying that William F. Tucker merely in his character as guardian, or merely in his character as executor, was made a defendant, and that he was not personally a defendant. The prayer for process in this bill does not contain the names of all the defendants mentioned in the introductory part of the bill, as required by equity rule 23, bnt for the purposes of the present controversy that rule can only be treated as a formality. The prayer for process indicates with as much distinctness against whom the subprena is to issue as though the name of each partie· ular defendant, as well as the name of Mrs. Sarah H. Gage, had been repeated in that part of the bill. I see no reason, on account of this formal defect, for impeaching the decree, or for holding that Tucker was not personally a party. The snbprena in the case reads in part as follows: "The United States of America to Sarah H. Gage, widow of the late George W. Gage, deceased, and executor of his will; Eva Gage, Mary B. Gage, Carrie E. S. Gage, Alice Gage, George W. Gage, Jr., and David A. Gage, children of said George W. Gage, deceased; William F. Tucker, Joseph K. Barry, and John W. Clapp, guardian, etc., and William F. Tucker, executor, etc., Louis L. Coburn, executor, etc., David A. Gage," and so on, naming the other defendants and corporations,-"Greeting: We command you, and every of you, that you appear before the judges of our circuit court," etc. Then, after the signature of the clerk, comes the memorandum: "The above· named defendants are notified that unless they, and each of them, shall enter their appearance in the clerk's office of said court at aforesaid, on or before the date to which the above writ