Kimber v. Gunnell Gold Min. & Mill. Co.

Citations

• 126 F. 137
• 61 C.C.A. 203
• 1903 U.S. App. LEXIS 4293

Syllabus

<p>1. Mortgage — Action at Law — Mortgage Bond.</p> <p>A mortgage or trust deed of all the property of the mortgagor, to secure the payment ratably of bonds or obligations issued to or held by numerous creditors, does not, in the absence of an express stipulation or of a statute to that effect, constitute any defense to an action at law against the mortgagor by each of the creditors upon the bonds or primary obligations thus secured.</p> <p>S. Action at Law — Worthlessness of Prospective Judgment No Defense.</p> <p>The fact that a prospective judgment against a defendant in an action at law will be worthless is no defense to the action.</p> <p>8. Mortgage Bonds — Action at Law — Prospective Levy on Mortgaged Property No Defense.</p> <p>The prospective levy upon the mortgaged property of an execution upon a judgment in an action at law against the mortgagor, brought by one of several bondholders secured by the same mortgage, constitutes no defense to the action on the part of the mortgagor.</p> <p>4. Practice — Judgment on Pleadings — Issue Untried.</p> <p>A judgment for a defendant upon the pleadings in an action at law, in which the complainant pleads overdue coupons, the answer avers payment, and the reply denies that averment, is erroneous, because the pleadings present an issue of fact on the question of payment upon which the plaintiff is entitled to a trial by jury.</p> <p>(Syllabus by the Court.)</p>