Hesse v. Ledesma

HamiltoN, Judge,

delivered the following opinion (after stating facts as above) :

The case presents a number of questions which will be considered consecutively. Some arise upon the state of the pleadings and others upon the nature of the relief sought.

1. The first matter to be considered is the effect of the change of front of the main defendant Ledesma. Upon the preliminary hearings he assented to the bill and joined in the argument of the plaintiff’s solicitor. Now, however, his solicitor in open court announces that Ledesma has changed his attitude and assents to the contention of Westphaling, the defendant who has been joined since the filing of the bill.

It is not perceived, however, that this makes any difference in the rights of the plaintiff. His case now stands or falls regardless of the contention of either defendant. The only difference is tbat be must prove bis own case instead of having; it admitted by tbe defense. If it were a matter of a personal defense to be set up only by Ledesma, tbe case would be different. But on tbe one band tbe right of tbe complainant is. entirely independent of tbe right of tbe defendant, and on the' other it may well be tbat by making a second mortgage to the' complainant tbe ■ defendant Ledesma devested himself of any right to agree with bis codefendant to tbe prejudice of tbe complainant.

2. One reason given for denying tbe equity of tbe bill is that; it is a bill for a receivership, and tbat there is no such ground of equity jurisdiction. This is true. A receivership is merely incidental to a suit to enforce an equity. It is not itself an equity. If tbe bill is to be construed as one in which tbe court must take charge of property in order to work through a. receiver, so tbat profits may be derived which would pay off the-complainant as well as defendant Westphaling, then it must-be dismissed for want of equity. A court of chancery cannot go into business. It cannot, on tbe ground of hardship, take-possession of an enterprise and appoint a receiver to run it for tbe benefit of those in interest, merely because tbe managers, have been unsuccessful in running it themselves. A receivership exists only as incident to a suit under some recognized bead, of equity jurisprudence.

3. Although tbe bill is-entitled one for receivership, however, this does not control. No matter bow it is entitled, if it presents an equitable case in its recitals, it may be sustained-In much tbe same manner it is argued tbat tbe bill, even upon-its own statements, presents merely a case of hardship, and" tbat this is not a ground for equity jurisdiction. Tbe complainant, However, says that the bill is drawn so as to come ■under the equitable remedy for accident. Accident is a ground ■of equitable jurisdiction. It is usually grouped with fraud .and mistake, but it Has its own particular rules.

Originally tHe field of accident in equitaHle jurisprudence was mucH larger tHan at present. It is one of tHe oldest Heads ■of equity jurisdiction. At present tHe jurisdiction is based upon tHe plaintiff’s conscientious rigHt to relief and the impossibility of obtaining an adequate remedy at law. 2 Pom. Eq. Jur. §§ 824, 825. It is, of course, true of this as of every other Head of equity jurisdiction, that the complainant must not Himself be proximately the cause of the alleged accident. It Has been repeatedly Held that equity will not, any more than law, relieve a tenant against such accidents as the destruction ■of the leased property where He Has not covenanted that His liability ceases in such event. Whatever might Have been the rule before the doctrine was fully developed, equity does not now embrace every case in which an unexpected result Has been produced by accident, or even every kind of misfortune, despite the dictum of Lord Coke, 4 Inst. 84. As a party could in such case Have protected Himself by a covenant in the contract, He should not apply to the court to do for Him what He did not do for Himself. THe result is- due to His own negligence, and not to an accident.

■ 4. THe Head of accident generally comes up in connection with forfeitures on contracts and with defective execution of powers. No case Has been cited analogous to the present, where the complainant alleges that He Has been prevented from exercising His right to redeem a second mortgage by the sudden occurrence of war between Germany and England, which Has practically cut off all communication between bim and Ms principals in Germany. This bill does not state the grounds as fully as could be desired, and it may be that further amendment is needed in tbe way of furnishing proper allegations, but in effect the complainant says that he has the right as a •second mortgagee to redeem from the first mortgage and has been prevented by the present unparalleled situation from obtaining money therefor, which he could otherwise have obtained. It may very well be that a parallel case has seldom arisen, and that therefore there is no precedent to be cited. It is not perceived, however, that this can make any difference. The declaration of war by great powers is a human event and can hardly be called an act of God. Nevertheless, so far as concerns the rights of suitors, it is something coming within the definition of an accident, as “an unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right or becomes subjected to some legal liability, and another person acquires a corresponding legal right which it would be a violation of good conscience for the latter person, under the circumstances, to retain.” 2 Pom. Eq. Jur. § 823. It is perfectly true that Westphaling is not responsible for the situation, that it is an accident to him as much as it is to the complainant; nevertheless, under the allegations of the bill, the condition, and hence the rights, of the respective parties, have been changed by the occurrence. It would seem, therefore, that, apart from the question of amendment of form, the bill has equity.

5. There is another ground of equitable jurisdiction which may apply to the bill, although perhaps it is not necessary to decide the point. A recognized-equity is the right of marshaling, that is, where a defendant has a remedy against two funds and the complainant has a remedy against only one of them, the defendant may be compelled to resort first to the fund to which he alone has recourse. It is true the ease at bar does not present an instance of two separate pieces of property. The marshaling, if applicable, would relate to two kinds of property rather than to two pieces of property, but nevertheless to two funds, properly speaking. Under the allegations of the bill the complainant has a second mortgage upon the land of a sugar plantation, subject to the mortgage of defendant Westphaling upon the plantation and also upon the crop grown upon it. It is further alleged that the crop will pay off all of the Westphaling claim and leave the land free for the complainant and other creditors. It would seem that in principle this presents a case where a double creditor should be confined to his special property, and in first instance be enjoined from enforcing his rights upon the joint property, provided his security be not impaired. No exact precedent has been furnished for this application of the doctrine of marshaling, but here again the situation is anomalous. At common law the crop was not regarded as distinct from the land, and indeed the crop was not generally of great value as compared with the land. In Porto Eico conditions are very different. The principal product is sugar cane, and most land is of value only for the purposes of the crop, which in turn is handled and by refacción often encumbered separately. It is true the claim of defendant Westphaling is not a refacción, and recent developments indicate that the case will be complicated by a refacción held by yet a third creditor. Nevertheless, as between the complainant and Westphaling, the latter has a claim on both the land and the crop.

On proceedings of this character, raising the question of want of equity, amendable defects will be considered as amended, and only the essence of the bill considered. East & West R. Co. v. East Tennessee, V. & G. R. Co. 75 Ala. 276. According to the above views, the bill presents equity, and therefore the motion to dismiss must be denied.

6. The general rule is that an injunction will be dissolved upon the full denials of a sworn answer, or for want of equity in the bill. Barr v. Collier, 54 Ala. 41. The answer which has been filed denies many of the allegations of the bill and sets up the want of equity. One of the main allegations of the bill is that the sale was ordered in an ex parte proceeding, while an answer alleges, and is supported by the transcript of the proceedings annexed as an exhibit, that notice was served upon the complainant as early as June 27, and furthermore alleges facts tending to show that maintaining the injunction will work irreparable damage to the defendant Westphaling. The answer, however, shows that the proceeding was based upon a law which is attacked in the bill. The rule is that where the burden is on the complainant, full denial in a sworn answer made on knowledge is generally ground for dissolution.' This does not apply, however, where the burden is' on the defendant. The question is one largely discretionary with the court. The propriety of dissolution, even where the answer makes a full sworn denial, depends upon the question of who will suffer the greater harm by the dissolution. In the case at bar the worst that could happen to defendant Westphaling is delay in collecting interest and the possibility of waste of the mortgaged property. These are covered by the bond which the complainant has been directed to give. Harrison v. Yerby, 87 Ala. 185, 6 So. 3. On the other hand the complainant avers that his damage will, under the local law, be absolute, inasmuch as there is no redemption from such a sale in Porto Rico. It is true that Westphaling may and probably will be the purchaser, and that, as Westphaling is a defendant to this suit, he can be controlled by the subsequent orders of this court herein. But Westphaling is a nonresident, and if he is not the purchaser, which cannot be assured, he will not be subject to the further orders of this court. The balance of damage, therefore, would be largely upon the complainant. It is true that in this case no injunction has been issued, and of course none can be dissolved, but the same principle would apply to the restraining order and to the consideration whether an injunction should issue. It would seem best, therefore, to continue the injunctive remedy to the complainant, unless the bill is defective on some other ground.

7. These preliminary questions of procedure being disposed of, the case comes up on the main questions which have been argued. Of these the first is that the mortgage law regulations, under which the local proceedings were had, are unconstitutional as denying due process of law. Constitutional questions are not favored. Constitutionality of a law is not passed upon if the case presents any other clear ground for decision. Joiner v. Winston, 68 Ala. 130. A law is presumed constitutional, unless clearly shown not to be so. South & North Ala. R. Co. v. Morris, 65 Ala. 193. The question, however, is directly raised in the case at bar and will therefore be passed upon.

The importance of the point can hardly be overstated. Porto Eico is essentially an agricultural district, and tbe basis of all credit on tbe Island is tbe land. Tbe mortgage law was first passed in Spain in 1861, and tbe governmental proceeding at that time shows tbe importance wbicb was attached to it. It was declared that tbe aim of tbe law was “to consolidate tbe territorial credit upon tbe basis of tbe mortgage security and payment of what has been pledged. He who lends under a mortgage lends to tbe thing rather than to tbe person. . , . Tbe loan is not a personal credit, it is a real credit, it does not depend upon tbe person of tbe debtor, it is not subject to bis vicissitudes. . . . Everyone knows bow far tbe preference of bis credit will reach over tbe other creditors; be stands in tbe same position as if be bad fixed one portion of tbe price of tbe property for tbe day on wbicb payment was to be made'. . . . With tbe adoption of this system, capital will find solid and easy investments; tbe property owner will enjoy a credit proportionate to bis true wealth.” (Mortgage law of .18.61, pages 6, 7, and 8.) In 1893 it was thought that tbe benefits of tbe law were so marked that it should be extended to Porto Eico and other Spanish colonies, and this was accordingly done. It is true that a law is to be interpreted according to its; words, and not according tó tbe intention of tbe lawmakers;nevertheless, tbe circumstances under wbicb a law is enacted throw light upon tbe language.

A part of tbe mortgage law is tbe Code of Eegulations for its-exeeution, and it is really these rather than tbe substantive, law wbicb are attacked in this proceeding. It will be necessary,, therefore, to see what is provided in both. . ■

Article 128 of tbe mortgage law indicates in a .general way; tbe “judicial procedure” necessary to obtain a public sale.of. the mortgaged property, and provides: In the regulations for the execution of this law, the other details for this summary proceeding shall be determined.

It is in such regulations for the execution of the mortgage law (commonly called “Regulations”), articles 168 to 176, inclusive, that we find the detailed rules as to the proceedings in question.

Article 169 of the regulations requires that a complaint be filed by an attorney at law, a certified copy of the mortgage with a memorandum of its record, and also: “A certificate of the register of property of a date subsequent to that on which the obligation fell due, declaring that the mortgage does not appear canceled, nor that its cancelation is imminent, according to the day book. . . . This certificate cannot date back more than fifteen days before the institution of the proceedings.”

The practice of the local district court in these proceedings requires that a regular complaint be filed with the secretary (clerk of the court), entitled in the name of the mortgagee, as plaintiff, against the mortgagor, as defendant. The cause is noted on the books of the clerk’s office as in any other action, but, instead of a summons being issued forthwith by the clerk, the papers are delivered to the judge of the court. Article 170 then provides: “The judge shall examine the petition and the documents upon which it is based, and should he consider the legal requisites complied with, he shall issue a decree without further proceedings, summoning the persons [interested] . ■ . . so that within thirty days they may make the payment of the sum sued for, with costs, should the latter be also guaranteed by the mortgage; otherwise there shall be a public sale of the mortgaged property.”

The defendant cannot appear, as in other actions, and move to strike an allegation from the complaint, or demur, or otherwise delay the proceedings, but must appear and pay the amount of the mortgage debt, or so much thereof as is still due in accordance with the allegations, of the complaint in foreclosure. Three defenses may be interposed in the summary proceeding itself, as provided by article 175 of the regulations, to wit, forgery, prior title, and cancelation. These requirements are shown by the proceedings, of which a certified transcript is attached to the answer, to have been carefully conformed to in the local district court in the case at bar. Were these due process of law ?

8. The Supreme Court of the United States has decided that due process of law implies actor, reus, judex, regular allegations, opportunity to answer, and trial according to some settled course of judicial proceedings. Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56. The fact that a proceeding is summary does not make it any the less judicial. While the 14th Amendment to the Constitution requiring due process of law does not define the subject, the essence is that the defendant have his day in court, that is, a fair opportunity to defend. Administrative process, regarded as necessary in government affairs, sanctioned by law and usage, is, so far as regards public matters, as much due process as any other. This, however, is limited to public matters, such as taxation and the like. Where property or other rights between individuals are involved, due process requires that there be a regular course of judicial proceedings, which implies that the party shall have notice and opportunity to be beard. Hagar v. Reclamation Dist. 111 U. S. 708, 28 L. ed. 569, 4 Sup. Ct. Rep. 663. The 14th Amendment does not undertake to control tbe power of a state to determine by wbat process legal rights may be asserted or legal obligations enforced, provided the method of procedure adopted gives reasonable notice and fair opportunity to be heard before-the issues are decided. Iowa C. R. Co. v. Iowa, 160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 44 L. ed. 747, 20 Sup. Ct. Rep. 620. A defendant is entitled to his day in court, but this, does not mean that he is entitled to any particular form of defense, or any particular method of procedure to set up that defense. Louisville & N. R. Co. v. Schmidt, supra; Torres v. Lothrop (Zayas v. Lothrop) 231 U. S. 171, 58 L. ed. 172, 34 Sup. Ct. Rep. 108.

9. There is a distinction between ex parte matters and summary proceedings. A summary proceeding is one which is inter-paries, and the only difference between it and a regular action is that some of the usual steps are omitted. All substantial rights and defenses, however, are maintained. Under these-circumstances it is as true of a summary proceeding as of a regular action that the defendant has his day in court.

On the other hand,.an ex parte proceeding is one where only the petitioner or actor is represented, and where the court decides that justice will be promoted by action at once without hearing the other side. This is often done, and, if the other-party has full opportunity later to show his side of the case, it would not offend the constitutional provision as to due process of law. A proceeding strictly ex parte, with no opportunity-later to the person affected to set aside an improper judgment,. is not due process of law, and would offend tbe constitutional provision. Tbe question at bar is, Of wbicb nature is tbe mortgage foreclosure procedure, — is it summary or is it ex parte?'

In Porto Pico there is a distinction between actions of a. general nature and special proceedings of a more summary-nature. Both are- to be considered as judicial proceedings,, because both require a cause of action, parties plaintiff and. defendant, trial, and judgment. Giménez v. Brenes, 10 P. P. P. 124. Tbis case bolds that tbe special or summary mortgage-proceeding is constitutional, and cannot be assailed on the-ground of its not constituting due process of law, inasmuch, as it does not leave unprotected tbe bona fide debtor, who is-beard and afforded tbe means of righting tbe wrongs committed, against him. Tbe opinion, however, places tbe decision upon another ground and expressly says that tbe last word has not been said upon the subject. It should be noted also that there is a vigorous dissenting opinion by tbe late Mr. Justice Mac-Leary.

10. Tbe procedure in tbe local court follows tbe regulations wbicb go with tbe mortgage law, and is a survival from what was tbe procedure in Spanish times as to many other claims.. Supervision by a judge was more general under that system, than at common law. Tbe government played a larger part. Tbe private wrongs were enforced only in connection with-criminal prosecutions. Tbe civil procedure was in 1904 remodeled by tbe Code of Civil Procedure as to everything except tbis proceeding relating to tbe enforcement of a mortgage, and even tbis is supplemented in some respects by tbe act. of .1905.

A somewhat similar law is found in Louisiana, where the. French civil law prevails. In considering a case from that state, the Supreme Court, in Fleitas v. Richardson, 141 U. S. 538, 37 L. ed. 272, 13 Sup. Ct. Rep. 429, says:

“By the Louisiana Code of Practice, an act of mortgage passed before a notary public in the presence of two witnesses, with an acknowledgment and identification of the debt thereby secured, imports a confession of judgment, upon which the creditor is entitled to executory process, and to obtain, without previous citation to the debtor, an order for the seizure and sale of the mortgaged property for the payment of the debt. Arts. 63, 98, 732, 733, 734. But the clerk of the court is required to give notice of this order to the debtor three days before the sale, adding a day for every 20 miles between the place of his residence and the place where the court is held. Art. 735. If such notice is not given to the debtor, the proceeding is erroneous. . . . The debtor may obtain an injunction to suspend the sale, if before the time of the sale he files in the court his opposition in writing, under oath, alleging that the debt has been paid or remitted or extinguished, or that the time of payment has been extended, or that the act of mortgage is forged, or obtained by fraud, violence, or other unlawful means, or that he has a liquidated account to plead in compensation, or that the action for the debt is barred by prescription. Arts. 738, 739.

“The provisions of that Code, making the acknowledgment •of the debt and mortgage, in solemn form before a notary public, conclusive evidence upon which, without previous notice to the debtor, the creditor may obtain an order for the seizure and sale of the mortgaged lands to satisfy his debt, bear some analogy to proceedings (never denied to be due process of law) wbieb were well known where tbe common law prevailed, before tbe adoption of tbe Constitution of tbe United States, — such as tbe recognizances called statute merchant and statute staple in England, and similar recognizances in Massachusetts, taken before a court or magistrate, and upon which, when recorded, execution might issue without previous notice to the debtor, and be levied upon his lands or goods. . . .

“In Louisiana, however, the act before the notary, as well as the order for the seizure and sale, includes no lands but those described in the mortgage, and although the creditor may obtain that - order without previous notice to the debtor, the sale • cannot take place until the debtor has had notice and opportunity to interpose objections.

“This proceeding, therefore, is a civil suit inter partes, which, where the parties are citizens of different states, is within the jurisdiction conferred by Congress on the circuit court of the United States. . . . And the proceeding, though in summary form, is in the nature of a bill in equity for the foreclosure of a mortgage, and clearly belongs on the equity side of that court. Brewster v. Wakefield, 22 How. 118, 128, 16 L. ed. 301, 303; Walker v. Dreville, 12 Wall. 440, 20 L. ed. 429; Marin v. Lalley, 17 Wall. 14, 21 L. ed. 596; Idaho & O. Land Improv. Co. v. Bradbury, 132 U. S. 509, 515, 33 L. ed. 433, 436, 10 Sup. Ct. Rep. 177.

“The debtor being entitled to notice and hearing before an actual sale of the property, it would seem, upon principle, that the order for a sale must be considered as interlocutory only, and not the final decree in the case,' at least when the debtor does, within the time allowed by the Code, come in and contest the validity of the proceedings. McGourkey v. Toledo & O. C. R. Co. 146 U. S. 536, 545, 547, 549, 36 L. ed. 1079, 1083-1085, 13 Sup. Ct. Rep. 170, and cases there cited.”

11. The Fleitas Case went up upon the question whether the decision therein was a final judgment, and consequently one which would support appeal. The Supreme Court held that it was an interlocutory judgment and so did not support appeal. The case at bar more directly raises the question of constitutionality, for the point is as to whether the complainant has been deprived of his day in court by the foreclosure proceedings. In the first place, there is no question under the record as shown in the answer that he had notice. Fie did not avail himself of it, and now says that it would have been useless to appear, as the defense he had — that of accident — was ruled out by the statute. The proceeding was summary, and not ex parie, as alleged, for it gave proper notice. The question of constitutionality can come up, not as to these features, but as to whether the denial of the defense in question is a denial of complainant’s day in court.

It is argued for Westphaling that this court has been held to be not a constitutional court, and that under the organic act of 1900, §§ 8 and 34, this court cannot sustain an equitable defense against a positive law of Porto Pico. In other words, it is contended that the equitable powers of this court are limited to the law as declared in the Civil Code and other statutes.

It is unquestionably true that Romeu v. Todd, 206 U. S. 358, 51 L. ed. 1093, 27 Sup. Ct. Rep. 724, has decided that this court is not one of the district courts directly contemplated in the constitutional provision for the judicial power of the United States, but is one established by Congress for the better government of acquired territory. This, however, would only mean that Congress could, for tbe purpose of such government, abridge the judicial power which would otherwise inhere in the court; it does not follow that Congress has so abridged its power. This court is expressly given all the powers of the district courts ■of the United States, both at law and in equity. Romeu v. Todd has already been construed by this court in the Borinquen Case as applying to matters of procedure, and not of jurisdiction. The equitable powers of. this court are as ample to compel the defendant to exercise his rights derived from the civil law according to equity and good conscience as the powers of a Federal district court in a state of the American Union to compel a defendant to exercise his rights derived from the local Code of that state in accordance with equity and good conscience. A strong analogy will be found in the Federal decisions on this point in Louisiana, which is a civil law state. Gaines v. Chew, 2 How. 619, 11 L. ed. 402; Livingston v. Story, 9 Pet. 632, 9 L. ed. 255; Gaines v. Relf, 15 Pet. 9, 10 L. ed. 642. Equity changes no law. It merely compels a man to exercise his legal rights equitably.

It follows, therefore, that if a case of accident in the sense of equity jurisprudence is made out, it may in a proper case be applied to a person claiming under the mortgage law, or under any other law. In the case at bar it is strenuously •denied in the answer that there was any accident, but, of course, this is a matter of proof which cannot be decided at this stage •of the case.

The mortgage law is a summary proceeding, hut is constitutional. While in a proper case a court of equity will permit the interposition of a defense not prescribed in the regulations, this does not at all involve the constitutionality of the law. It is not necessary to invoke tbe principle that a law may be unconstitutional in one part even though, constitutional in another. Vines v. State, 67 Ala. 73. So far as this case is concerned, the mortgage law is constitutional.

12. Quite apart from the.question of constitutionality there* arises the question of legality of enjoining the sale in the local court. It is contended by Westphaling that this is a matter which is forbidden, by § 720 of the Revised Statutes of the* United States, since re-enacted as article 265 of the Federal Judicial Code. [36 Stat. at L. 1162, chap. 231, Comp. Stat. 1913, § 1242.] This section reads as follows: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law-relating to proceedings in bankruptcy.”

Under the Foraker act the local courts are state courts for such purposes.

The section is designed to prevent' conflict between courts- and should be liberally construed to advance this object. American Asso. v. Hurst, 7 C. C. A. 598, 16 U. S. App. 325, 59 Fed. 1. At the same time, it takes away the right a party has in this court to one of the usual remedies in equity, and the-subject therefore, from both points of view, requires careful consideration. It involves a decision of what is a court and what is a proceeding.

The use of the word “court” is not conclusive. It is used much as the Latin word curia was used, and indicates a body of men upon whom rests the decision of a matter, and the' title possibly comes from their sitting not in a building, but in a court or yard. This old sense is preserved in several instances. The legislature of Massachusetts is still called a court. The general assembly of the Presbyterian church is called a court.

Since the days of Montesquieu the functions of government have been classified as executive, legislative, and judicial, and the Constitution of the United States is based largely upon this distinction. With the increasing complexity of government affairs, however, there has grown up a fourth department, generally spoken of as administrative. This combines some of the legislative and judicial functions, but is perhaps mainly executive. The word “court” is sometimes applied to such bodies also, although perhaps “commission” is more usually employed. Thus, in many of the states there is a body looking after laying and expending taxes, and sometimes burdened with election duties, which bears the name of court of county commissioners. It is really a revenue board with only incidental judicial functions. In the case of Busch v. Webb, 122 Fed. 655, it is decided that the duties of such a body as to elections are ministerial, and not judicial, and that it is not a court within the meaning of § 120.

Not dissimilar to this case arising in Texas was one' in Kansas, where there was a so-called court of visitation, with, power to regulate the business of railroads and telegraphs. In Western U. Teleg. Co. v. Myatt, 98 Fed. 335, it was held that this body was legislative ’and administrative, and that its character was not affected by its being denominated a court, and provided with the machinery and procedure of a court. Section 120 wa& held not to apply to this “court.”

13. The word “court,” therefore, is not conclusive, and the line of distinction is rather to be found in the nature of the proceeding in question. As to this it may be observed that the word '''proceeding” goes beyond the action of the judge himself, and includes those of all the parties and officers necessary '.to bring a case to judgment and for the enforcement of that judgment. Under § 720 this court could not ordinarily enjoin .a party to a suit in the local court from proceeding with his .action after it had begun. Coeur D’Alene E. & Nav. Co. v. Spalding, 35 C. C. A. 295, 93 Fed. 280. Enjoining the parties instead of the court would be mere evasion. A court cannot exercise power over a party litigant in an independent forum. Peck v. Jenness, 7 How. 624, 12 L. ed. 846. This is somewhat upon the same principle that one court cannot disturb property in the judicial custody of another, as by attachment. Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019.

And 'a sheriff or marshal carrying out the orders of the court cannot, under § 720, be disturbed any more than the court itself. American Asso. v. Hurst, 7 C. C. A. 598, 16 U. S. App. 325, 59 Fed. 1; Ruggles v. Simonton, 3 Biss. 325, Fed. Cas. No. 12,120; Mills v. Provident Life & T. Co. 40 C. C. A. 394, 100 Fed. 344. The proceeding is not complete until its fruits are realized. So here the marshal is carrying out the orders of the local court and perhaps in theory is in possession of the property.

14. It is urged by the complainant, however, that an injunction in aid of jurisdiction does not infringe § 720 when con■strued in harmony with § 716, which reads as follows: “The Supreme Court and the circuit court and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to tbe usages and principles of law.”

Thus, under tbe removal statutes it bas been beld that an injunction will lie, for otherwise tbe Federal court would obtain “nothing but tbe shell of tbe case.” Terre Haute & I. R. Co. v. Peoria & P. Union R. Co. 82 Fed. 945. It bas also been beld that a Federal court can, notwithstanding § 720, issue an injunction to restrain proceedings in a state court as an incident to a case on tbe ground of fraud or any other equity, in which such relief could be granted if tbe judgment were rendered by a United States court. In such a case a preliminary injunction may be issued against tbe defendant to prevent tbe collection of a judgment by execution or otherwise. Marshall v. Holmes, 141 U. S. 589, 35 L. ed. 870, 12 Sup. Ct. Rep. 62; Dietzch v. Huidekoper (Kern v. Huidekoper) 103 U. S. 494, 26 L. ed. 497. Tbe Federal courts sitting in equity have tbe same power to prevent the enforcement of unjust judgments at law procured by accident or mistake as they have to prevent the collection of those obtained by fraud. They have plenary jurisdiction to restrain tbe enforcement of judgments and decrees to which tbe defendants bad meritorious defenses that they Avere prevented from interposing either by fraud or accident or mistake unmixed with their own negligence. Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 336, 3 L. ed. 362, 363. This opinion was delivered by Chief Justice Marshall, and to the same effect are Johnson v. Waters, 111 U. S. 640, 667, 28 L. ed. 547, 556, 4 Sup. Ct. Rep. 619, and Arrowsmith v. Gleason, 129 U. S. 86, 97, 32 L. ed. 630, 634, 9 Sup. Ct. Rep. 237.

15. It follows from the above discussion that the mortgage law of Porto Rico is constitutional, and tbe local foreclosure proceedings those of a court, and that a court of equity will in a proper case be authorized to enjoin the proceeding in a local court in order to establish an equitable right. It does not necessarily follow, however, that such an injunction will be issued in all cases. An injunction is an extraordinary remedy and will not issue where some other adequate remedy is provided by law. In this case there is, or could have been, such an adequate remedy.

The answer shows from the record that complainant was notified June 27 of the local proceeding, that the order of sale was made July 21, almost a month afterwards, and actual sale was later postponed twice, to wit: August 18 and September 23. The war events referred to in the bill are as follows: The Archduke Ferdinand of Austria was assassinated June 28, but the Austrian ultimatum to Servia was not until July 23,' replied to two days later, and followed by war between these powers July 28. There was no financial stringency up to that time. Germany declared war on Russia July 31, invaded Belgium immediately, and declared war on England August 4. If the dates in the answer are correct, and they are sworn to, the complainants had over a month free for communication with Germany, of which they either did not avail themselves, which would defeat a claim that they were without blame, or they found themselves unable to raise the money, which would negative the claim of accident, that is, misfortune due to war, as set out in the bill.

A plenary action allowing general defenses could have been brought in a local court under mortgage regulations, article 175, even pending the foreclosure proceedings. American Trading Co. v. Monserrat, 19 P. R. R. 941. .If that did not admit the defense of accident, the foreclosure proceeding itself could have been removed to this Federal court at any time before the judgment of July 21. Fed. Judicial Code, § 29 [36 Stat. at L. 1095, chap. 231, Comp. Stat. 1913, § 1011]. Accident and all other proper equities could have been set up here, and injunction could have issued under the above authorities in aid of jurisdiction. After neglecting this course complainant cannot now come in and seek to enjoin the local court. "Leges vigüankibus, non dormientibus subveniunt ”

16. The right of the mortgagor or third persons to bring a plenary suit against the mortgagee is recognized by the mortgage regulations themselves, article 175. The supreme court of Porto Eico has recently declared that a suit may be maintained to: annul the foreclosure proceedings in a local district court different from the one foreclosing the mortgage. American Trading Co. v. Monserrat, supra. The same right exists in the Federal court. But the bill at bar is not framed with that in view. If that remedy is desired it must be by a different proceeding.

17. This ease was submitted upon defendant’s motion to dissolve the restraining order upon the denials of the answer and’ his motion to dismiss the bill for want of equity. The argument assumed a wide range and turned largely upon the question of jurisdiction of this court under Eevised Statutes, § 720, and under the organic act, as well as upon the equity of the bill. Properly the remedy to take advantage of lack of jurisdiction should be a motion to discharge the injunction, and that to take advantage of the want of equity a motion to dissolve the injunction, whose jurisdiction is admitted. Both questions have. been argued, however, and there is an agreement that both are submitted to the court under the present motions. The opinion of the court is that as at present presented; therefore, the bill is without equity and the motion must be granted to dissolve the restraining order on that ground and because the bond heretofore required has not been given. The motion to dissolve, or more properly discharge, for want of jurisdiction to enjoin under Revised Statutes, § 720, is also granted. Ten days are allowed to amend the bill to meet the above opinion.

It is so ordered.