Merrill v. Jordan ( 1880 )

The plaintiffs' mortgage is apparently a valid lien upon the land embraced in it, both under our laws and the provisions of the bankrupt act, and therefore, in our view, the bankruptcy court cannot interfere with or control the exercise of jurisdiction of an action of foreclosure by this court. Peck v. Jenness, 16 N.H. 516 — S.C., 7 How. 612. But however this may be, it must be held in cases like the present, where no action in relation to the property has been taken by the assignee or by the creditors in the bankruptcy court, or by the court itself, that state courts have jurisdiction to make the lien available; and such, we think, are the authorities generally. Eyster v. Gaff, 91 U.S. 521, 525; Re Moller, 14 Blatchf. 207; Cole v. Duncan, 58 Ill. 176; Bentley v. Wells, 61 Ill. 59; Brown v. Gibbons, 37 Iowa 654; Goodrich v. Wilson, 119 Mass. 429; Hatcher v. Jones, 53 Ga. 208; Reed v. Bullington, 49 Miss. 223; Whitridge v. Taylor, 66 N.C. 273; Burlingame v. Parce, 12 Hun 144.

Nor is Covill improperly made a defendant, because otherwise the foreclosure would be of no effect as to him, and the equity of redemption vested in him by the assignment would not be extinguished.

Demurrer sustained.

ALLEN, J., did not sit: the others concurred.