, FEDERAL REPORTER.
tober, 1886,' in the sum of $2,000. It is now claimed by complainants that tbis claim for rents and 'profits has priority over the lien ofsaid mortgagee upon said lands., · III support of this proposition weiare cited cases: ; 1{ines "'; Munnerlyn, 57 Ga.32, and 71 Ga. 14; to 'WT1,ght fv.Jf1"l{lht, 59 How.Pr.186; Scott v. Guerr18ey,4.8 Y. 106. Georgia case (Ri'l1Je8 V. Mwn,nerlyn) seems tq support this claim, but it does not appear fromli.n examination of that case when the Iilortgage was executed, whether before or after the co-tellant'sclaim for rents and profiilJ accrue4. , His not a direct authority, therefore, in the, present case. tbat case was executed l;>efore the claim But, assuming that the for and, profits tl;tedecision is not iJ:).ihp.rmony with the which is general current of authority on this question. The general sanctioned by the great weight of authority, is that the equitable claim for rents and profits reof one tenant in common agaifist' his ceived in excess of his share, is lrUperior omy to mortgages or liens; that prior m,prtgagees,orincumbrancersare,nQttleeessary or proper parties to partition proceedings between'co-tenants; and' that the rights of such prior mortgageesll,re Qptt,o ,be affected by such, partition proceedings. Wollen v. Capeland, 7 Johns. Ch. 140; Hannan v. Osborn,4 Paige, 343; Mes,ds!v. :Lanwingh, 1 ,Paige, 125. See, also,' Freetn.Co-Tenancy; caees cited,: ': , ' " ,,', 'f Our 'coriClusion' is tijat fOf rents iand profits, as against Crookham, is subordinate to the mortgages held by Miss Cooke. It is accordingly so ordered and !l ,. ;.
(
"
and " , I ': .·. ' .
'(lh'ro-uu Court. lJ.Ma{l;acku,eu8. March 11, lSSr.) ,, " '
InEquity.
On motion to reopen.
COLT; J. I ,have again gone over this case, and conaidered the arguments ,brought forward by the parties. I can find no error in the ,j
:t'ERKINS V. HENDRYX.
original decision. 1 After the court allowed the plaintiff to file a s'upplemental bill, the defendants had a right to answer it; setting up all their defenses to the relief sought by the plaitltiff. The usual time allowed for answering is 30 days, or from one rule-day to the next, (rule 18,) and I think rule 57, under which this answer was filed, contemplates an allowance of 30 days, and that defendants' counsel might properly have understood that such time was allowed him. If, upon the filing of the aI;lswer, the plaintiff found it unsafe to proceed to a hearing upon bill and answer, he should not have proceeded with the hearing. The proceeding to the hearing may well be regarded as Ii waiver by the plaintiff of the technical objection that the answer to the Bupplemental bill was not filed in strict conformity to the rules in point of time. The plaintiff says that his supplemental bill merely changed' the original bill from one of discovery to discovery and relief, and that, therefore, no further answer by the defendants was called for. The reply to this is that by making the bill one of relief against these defendants changed its character as to them, and plainly entitled them to set up all their defenses in. an answer to the supplemental bill. Otherwise tne defendants would be cut off from making a full defense, and a decree entered agaiast . them when they had no opportunity to be fully heard. It is further contended by the plaintiff that the defendants filed an answer to the supplemental bill, June 29, 1885, and that they had no right to file another. I find no such answer on file, ·nor any note of it on the records or entries of the court. The case was heard upon the supplemental bill, and the answer thereto filed July 21st. Under these circumstances, the court cannot say that there was any other answer to the supplemental bill than the one before it at the hearing. As to .the defendants' motion for a decree .June 30th, at the most it was irregular and premature. It could hot have the. effect of making the answer subsequently filed and the hearing upqn bill and answer void. The fact that the accounting ordered by the court under date of June 22, 1885, is missing .froill the files, is unfortunate, but in what way it can affect the action of the court on this motion I am unable to see. I understand that a substantial copy of the last paper is now on file in the clerk's office. .The error the plaintiff made in this case was in setting the cause down for hearing OIl supplemental bill and answer, instead of and proceeding' to take proof. If he was surprised at filing the allegations in the answer to the supplemental bill,> or did not have time to consider them, he should not have gone to a hearing upon bill and answer. But, after going to a hearing upon bill and answer, the court could not do otherwise than decide as it has done, and I am now unable to see any lawful way that the.court can reopen the case. Motion denied. . 1 23
Fed. Rep. 418.
524
FEDERAL REPORTER,
ST. LoUIS TYPE FOUNDRY and others v. CARTER & GIBSON PRINTING Co. and others. 1 (Oircuit Oourt,N. D. Temas.
May, 1887.)
INJUNCTION-RESTIliAINING ORDER-Bn,L NOT STATING THE FACTS.
be quashed, when the bill does not set forth the conceded facts in the case.
An injunction will be refused, and a restraining order previously issued will
On Motion for an Injunction Pe:ndente Lite, and upon a counter-motion to dissolve a restraining order. PARDEE, J ·. ,This case is submitted upon a motion for an injunction to dissolve the restraining order heretoIt is submitted upon an unsworn bill, alleging fraud, aSWOl'11.answer of Carter & Gibson denying fraud, and two exhibits of chattel mortgages, -one granted by the defendant printing pany, dated· September 15, 1885, in favor of defendants G. B. Carter and H. K.Gibson and the other chattel mortgage granted by the defendant printing company, November 18, 1885, in favor of the complainants on the same property. covered by the mortgage of September 15th aforesaid, and containing this provision: "Except or subject, however. to a previous deed of trust given in October, 1885, to secure an indebtedness of nineteen hundred and twenty dollars to Carter & G\Qson, parties who were formerly stockholders in the concern." In the sworn answer of Carter & Gibson is this averment: "Further answering, these respondents say that the complainants were fully said stock by the Carter &, Gibson apprised of the purchase of Printing Company, and of the said mortgage given to secure the payment of said notes; and not only were complainants aware of said purchase, but these respondents Cfharge and allege that said complainants approved of said sa.le. And, further, these respondents would show to the court that before the said mortgage given to the complainants by Carter & Gibson Printing Company wasexecuted·.fhat the whole circumstance of the sale and mortgage to these · respondents was explained to the complainants, and they had full knowledge of same:. and, when complainants drew up their said to be signed by the Carter & Gibson Printing Oompany, (and respondents allege that the same was prepared by complainants or their attorneys in St. Louis, Mo.,) they, with a full knowlege of respondents' mortgage, and with a full knowledge of the financial condition of the Carter &, Gibson Printing Company, they expressly proVided and inserted in said mortgage the following clause:"Then reciting the clause above quoted, as to the mortgage to Carter & Gibson. \ ; This showing of the case is not met by the complainants; who, ignoring the recitals in their own contract, and their alleged consent, seem to place their case upon the admitted allegations that the defendant company is and was insolvent; that part of their debt was contracted prior to the mortgage of September, 1885; and the further charge that the pur-
pe:ndente ll,te, and a fore granted' ex parte.
1 Reported
by Joseph P. Hornor, Esq., of the New Orleans bar.