Page:Federal Reporter, 1st Series, Volume 2.djvu/48

 CEALS V, NEDDO. 41 �dend upon the common stock, and wlien these net eamîngs, thus applied on the preferred stock and on the common stock, were more than sufficient to pay both, then the excess was to be divided between them equally, both common and preferred. Besides, it seems to me, from the nature of the case and character of the daim which is here set forth by these preferred stockholders as against other parties claiming and baving liens upon the property, that the claim of pre- ferred stockholders should net be allowed in a doubtful case. The general raie is that stockholders are only to be paid after the claims of other lien holders, and where they come f orward and insist upon having a priority of payment over mortgage crediter s', a specifie lien beyond ail doubt should be shown to exist in their favor. If the claim of the preferred stockhold- ers is valid, the second mortgage creditors may well ask when is their debt to be paid. It is only by construction, not Tery clear or satisfaetory, that the claim of the preferred stockholders is sought to, be made out in this case. It is a claim brought forward after long delay, and does not, under the circustances, commend itself very strongly to the equitable consideration of the court. On the whole, therefore, I shall Bustain the demarrer to the cross-bill. ���Beals V. Neddo. �{Circuit Court, D. Kanaas. Tebruary, 1880.) �MoRTaAGE — DuBBSs — ASSIGNEE wiTHotTT NOTICE. — Duressîs not av8ÎlabIe» as a defence upon the foreclosure of a mortgage, where the note and mortgage were purchased before maturit,}', for value and without notice. �In Equity. �Peck, liyan e Johnson, for plaintiff. �Danthill e McFarland and Martin e M'dehan, for defend- ants. �FosTEE, D. J. The plaintiff, Charles L. Beals, filed his biU in equity against the defendants, A. P. Neddo and Louisa ����