33 F. 199 | U.S. Circuit Court for the District of Southern New York | 1887
The case of Davis v. Gray, 16 Wall. 203, is authority to the effect that a, court of equity, in the course of its ordinary jnrisdietion, such as is exercised in a suit for the foreclosure of a mortgage, can confer upon a receiver all the powers and rights usually vested ill statutory receivers of insolvent corporations; and that a receiver so appointed can maintain an action in his own name, and can enforce any right of property, legal or equitable, which is within the authority conferred upon him by the terms of the decree or order by which he was appointed! The order appointing the receiver in that case authorized him to sell and convey the mortgaged property, an authority which it can hardly be sup
The complainant has no interest in litigating the other matters of the bill, and, except as they are pertinent to the relief which may properly be sought in a foreclosure suit, they present merely abstract questions. The matters of the bill, so far as they relate to the lien of the mortgage, and the rights of the parties thereunder, should be the subject of a supplemental bill in the suit to foreclose the mortgage, or an original bill in the nature of a supplemental bill. Such a bill should contain appropriate allegations to show that the lien of the mortgage extends, or should be extended, to the after-acquired property of the American Rapid Telegraph Company; and should set forth the interests and claims of the defendants alleged to be subordinate to the mortgage; and should include in the .prayer for relief that the after-acquired property be sold under the decree of foreclosure, and that all liens or equities of the defendants subsequent to the lien of the mortgage be barred and foreclosed. No doubt is entertained that it is competent, in a suit to foreclose a mortgage, to make one a defendant who claims to have an equitable or a legal title to the property prior in time or superior to the title of the mortgage, when, as in this case, the mortgagee asserts that such title is not prior in time or superior to the title under the mortgage, but arose subsequently, and