342
FEDtmAL REPORTER.
Such an inference would tend to defeat the,application for a sale in all cases. To show, therefore, that individuals or companies, having rival interests, have combined to purchas6 this property, who they are, and the terms on which they contemplate purchasing or reorganizing, is unimportant to the present inquiry. In applications such as this <to compel witnesses before an examiner to answer) the court generally inclines towards the application, and requires an answer wherever it seems probable the testimony may be relevant. Care, however, must be exercised to avoid unnecessary and improper inquiry into private affairs, and especially in such cases as this, where the inquiry and exposure might tend, to some extent, to defeat the objects of a sale, by preventing the organization and preparation, in advance, necessary to create competition, and secure a just consideration, or price, for the property. Without such previous organizations and arrangements, great sacrifice and loss must attend all such sales. They are therefore to be promoted, rather than discouraged by unnecessary and improper exposure of their membership. Of course, we refer to lawful and proper organ· izations and preparations with a view to purchasing. With such as might he otherwise, however, we could have no ooncern at this time. The order is therefore denied.
DEL VALLE and another v. WELsH,Ex'r.1 (OWeuit Oowrt, E. D. Pen'll.81J7AJanitJ. June 29, 1888.) 1. EXECUTORS AND ADMINISTRATORS-JURISDICTION-FOREIGN CLAIM.
The United States circuit court has jurisdiction to determine the validity of foreign claims against a decedent's estate.
I.
SAME-FOREIGN TRusTEE-1'RELntINARY INJUNCTION-JUDGMENT OJ' A STATB COURT.
B., a foreign trustee, presented his claim against the decedent's estate In the orphans' court of Philadelphia county. At the Bame time other claims, presented by bis ceJltui8 que t'l'U8t, were passed upon. B.'s claim was not strongly urged, but those of his cestuis que flruat were. All were rejected. An appeal was taken to the state supreme court. but not by B., and the judgment of the orphans' court was affirmed. B. subsequently tiled a bill in equity against the executor in the United States circuit court, and asked for a preliminary injunction restraining the executor from disposing of the assets of the estate. Held, refusing the motion for a preliminary injunction, that B. had no standing in equity; that, having become a party to the proceedings in the state court, that court's judgment was binding upon him.
In Equity. Motion for preliminary injunction. John C. Bullitt, for complainant. F. Carroll Brewster, for respondent, Del Valle. Morgan tt Lewis, for respondent, G;ibbs. lReported b) C. B. Taylor, Esq., of the Philadelphia bar.
RICHARDSON V. WARNER.
843
BUTLER, J. The jurisdiction of the court is scarcely denied. The question of power to grant the relief asked, and the effect of Mrs. Acosta's letter to Mr. Welsh, need not be considered. ·In the light of the facts now presented we do not think the plain tiff has any standing in equity. Not only was he aware of the proceedings in the orphans' {lourt to ascertain the ownership, and make distribution of the fund, but he appeared there; and seems to have called attention to his claim. He did not produce the proofs and press it, however, but allowed others to enter upon a contest for the property, which consumed time and money. The court was specially adapted to hearing and determining the rights of the plaintiff, as well as of all others, and no satisfactory explanation is made of his failure to press the claim. A possible explanation may be found in the circumstance that the prima facie beneficiaries under the alleged trust (in whose behalf and at whose instance it seems probable this bill is filed) had other claims, which antedate those of the successful contestants, (while the alleged trust antedates but the smaller of them,) which were supposed to afford better chances of success. Whatever may have induced the om,ission to press the claim, it seems (quite clearly) inequitable to allow the contest for the fund to be renewed by setting it up here. It seems so in the light of tltefacts before us, allowing full credence to the defendant's affidavits, as we must on this motion. Further developments may possibly change the as.pect of the case. The motion is disallowed.
RICHARDSON V. WARNER
and others. August 17, 18811.)
(Oircuit Oourt, D. Nebraska.
t.
MORTGAGE-FORECLOSURE-DEFENSE OF USURY.
The defense of usury against a bill to foreclose a mortgage failed, where the complainant was a bona fide purchaser before maturity, and the defendant a subsequent grantee from the mortgagor, holding under deed stipulating for payment by her of the mortgage.
2.
STATUTE OF LIMITATIONS-MoRTGAGE-PROVISION FOR DEFAULT IN PAYMENT OF INTEREST. .
A provision in a mortgage that, upon default in the payment of interest due on any of the notes secured thereby, the entire debt shall immediately become due and payable, does not, of itself, cause the notes to mature so as to start the running of the statute of limitations. R MORTGAGE-FoRMER ADJUDICATION AS DEFENSE TO FORECLOSURE.
Former adjudication cannot be pleaded against a bill to foreclose a mortgage, where, long after the purchase of the notes and mortgage by the com· plainant, the defendant commenced an action against the mortgagee. obtained service by publication, and took a default aI\d a decree annulling . the mortgage, although no assignment of the mortgage to the complainan t had yet been recorded. .. . . .
Bill to Foreclose Mortgage.