6 F. 443 | U.S. Cir. Ct. | 1881
In 1856, Stephen A. Douglas was the owner of a tract of land in the south part of the city, which lie proposed to convey to certain parties or to a corporation for an institution of learning. A contract was made between him and Dr. Burroughs, who represented the institution, on tlie second day of April, 1856. This conveyance was to be made on certain conditions which were expressed in the contract, among which were that there should be a building erected on the property, and that a certain amount of money
February 8, 1876, the university executed a mortgage or deed of trust to the plaintiff in this case, the Union Mutual Life Insurance Company, to secure the sum of $150,000. These are all the facts necessary to refer to before mentioning what has taken place in the courts.
On the eighteenth of February last a bill was filed in the circuit court of Cook county by Mr. Mills, the state’s attorney
On the same day, the eighteenth day of February last, the Union Mutual Life Insurance Company filed a bill in this court to foreclose the mortgage or deed of trust, claiming that default had occurred in the payment of the interest, and that the principal and interest were due, and that they had a right to foreclose the mortgage; claiming also that the university had failed in performing many of its contracts about keeping the property insured, etc. That bill contains this clause: “And your orator further charges that the said defendant, the University of Chicago, through its officers and agents, has conspired, or is conspiring, with divers persons to your orator unknown, to defeat your orator’s recovery of its said claim as hereinbefore stated, by denying that it, the said defendant, the University of Chicago, had authority to execute said trust deed, and to convey said premises, as in the manner herein set forth.”
The defendants to this bill are the University of Chicago, a corporation created under the laws of this state; N. K. Fair
It is undoubtedly a very embarrassing state of litigation, there being two suits brought in two jurisdictions, involving to a groat extent the same subject-matter, and I have felt some difficulty in determining what is the true rule upon this subject, but I have come to the conclusion that it must be this: That this court has a right to go on, as I have already said, and decide all questions which legitimately flow out of the subject-matter of controversy in this case, namely, those affecting the existence of the mortgage and the right of the University of Chicago to make it, so as to reach a decree, if the ease warrants it, which shall be conclusive upon the University of Chicago; that is to say, which shall prevent that corporation from ever setting up any claim or right to this property, or any claim whatever that it had not the right to execute this mortgrge. That is as far as I think it is necessary, and to that extent I think it is the duty of the court, to go. In this case is involved the fact of the making of the mortgage, the right of the University of Chicago to execute it, and the right of the court to make a decree which shall foreclose all the equities of the University of Chicago. In one sense it is true that a proceeding by foreclosure does not necessarily involve the absolute or indefeasible title to the land. The object is to foreclose whatever equity the mortgagor may have in the land. It may happen that there is a paramount title in a third party which need not be de
Now, I think I may say to the counsel that there ought not to be two litigations upon the questions, to which the court has adverted; that is to say, in two different courts. I admit that it is quite possible that the court may go on in this case and make a decree forever barring the equities of the University of Chicago, and preventing it from ever setting up any claim to this land, and placing this plaintiff, so far as the University of Chicago is concerned, in possession; but still there may be a right outside of that, existing in a third party, which would not be interfered with by this decree. I do not desire, if it can be avoided, to issue an injunction in this case, even if I have the right to do so. I have stated these views upon the questions of law involved, and I leave it to the counsel to determine whether it shall become necessary for the court to take any positive action.
I think it may be the right and duty of the court, if it shall become necessary, to prevent any parties in the state court litigation, who are also parties here, from going on and raising the question whether or not the University of Chicago had the right to execute this mortgage, and whether it is to be estopped by the decree of this court; for these are questions, I think, this court has the exclusive right to determine, —the court having jurisdiction of the parties and of the subject-matter, — and I think the decision of the court would be, as to the University of Chicago, binding in all courts. I leave the matter, therefore, without any order being made at this time, for the consideration of counsel.