Page:Federal Reporter, 1st Series, Volume 10.djvu/607

 MooRE V. o'fallon. 595 �mortgage, they should have enforced the same, and accounted there- for in the settlement of the bankrupt estate. If they did not so ac- count, the assignees in bankruptcy were entitled to the amount, to be divided among the general creditors. Certainly, these plaintiffs, as assignees of a mortgage, could not, on becoming purchasers at the mort- gage sale, be entitled to become creditors for the deficiency, and also for waste, in consequence of which they bought the propeirty for a diminished sum. To make this more clear lot it be supposed that a stranger, on July 17, 1874, bought the property and received a deed therefor. He bought the property as it then stood, and not a right of action as to antecedent waste. Could he, because he wasnot only purchaser but mortgage oreditor, acquire any rights other than what any other purchaser would secure? If so, to whom belonged the damages for antecedent waste ? If to the assignee of the mortgage, was it not bis duty to prove the same as an independent demand against the general estate, or, as in this case, for the bankrupts' as- signees to recover the same as general assets ? �In any view of the case which may be presented it seems that the conclusion announced is the only tenable one. �But there is a motion pending and reserved, yiz., to dismiss for want of jurisdiction. Plaintiffs' right to appear in this court depended mainly on the joinder of the assignees in bankruptcy, who were sup- posed to have some interest in the controversy. When the latter dis- appeared from the suit, what was the controversy? It was one be- tween the mortgagor and the assignee of the mortgage, who had become purchaser under foreclosure. The bankrupt estate had no longer any interest therein, and consequently this court no jurisdic- tion. Hence, whether the motion to dismiss for want of jurisdiction obtains, or the court is to pass on the merits, the same resuit follows. Ou the merits the plaintiffs cannot prevail ; but as the court bas no jurisdiction it cannot pass on the merits. �The motion to dismiss will be sustained. ��� �