Page:Federal Reporter, 1st Series, Volume 6.djvu/807

 CHAPIN V. WALKEK. 795 �Tbis is a bill in equity to foreclose a mortgage executed by respondent Dempsey R. Walker to John C. Burrage, con- veying certain real estate to secure the payment of a promis- sory note. The bill alleges default in the payment of said note ; that complainant is the holder and owner of the same, and entitled to foreclosure; and that the other respond- ents, including A. A. Brockway, have, or pretend to have, some claim to or interest in or lien upon Baid mortgaged premises; but that said claim, interest, or lien is subse- quent and subordinate to the lien of complainant. The Answer of respondent Brockway alleges that "on the tbirteenth day of January, 1876, the date of complainant's mortgage, as set out in his bill, the said property described in bis said mortgage as [describing it] was owned by and the title was in the government of the United States, and that the same ■was then, and fora long time afterwards, a partof the public lands of the United States; and that neither at the date of the said mortgage, nor at any time since, bas the said Demp- sey R. Walker, the mortgagor, had any title or interest in said real estate, and that neither the complainant nor his assigner took any interest in or lien on said real estate by virtue of the said mortgage set out in complainant's bill." It ie further alleged that on the twenty-sixth day of March, 1877, one Nicbola s Walker enteredthe landin controversy, andreceived a patent tberefor from the United States, and that he after- wards executed to the said respondent Brockway a mortgage upon the same, which be still holds unsatisfied. The prayer of the answer is that complainant's mortgage may be declared Toid and held for naugbt, and that respondent's lien be de- clared a first and prior lien on said land. �Brown e Campbell, for complainant. �Webb e Glasse and T. C. Corey, for respondent Brockway. �McCraby, c. J. There are several objections to granting i,he relief sought by the respondent. �1. In the first place, if he were entitled in tbis case to that relief, it would be necessary for him to seek it by a cross-bill. It is well settled that any affirmative relief sought by a de- fendant in an equity suit must be by cross-bill, and can never ��� �