Page:Federal Reporter, 1st Series, Volume 6.djvu/808

 796 FEDERAL REPORTER. �be granted upon the facts stated in the answer. Story's Equity Pleading, (Eedfield's Ed. ) § 398a; McConnell y. Smith, 23 lU. 611 ; Armstrong v. Pierson, 5 lowa 317. �2. It is also well settled, that, according to the practice which prevails in the federal courts in a suit to foreclose a mortgage, the mortgagee's title cannot be questioned. The question oi title must be investigated at law. In a fore- closure proceeding the court will not inquire what interest the mortgagee has in the mortgaged premises. 2 Jones on Mort- gages, § 148.2 ; Bull v. Meloney, 27 Conn. 560 ; Palmer v. Mead, 7 Conn. 149 ; Hill v. Meeker, 23 Conn. 592; Williams v. Rolnn- son, 16 Conn. 517; Dial t. Reynolds, 96 U. S. 340. �In the last-named case the supreme court, per Swayne, J., say : "It is well settled that in a foreclosure proceeding the complainant cannot make a person, who claims adversely to both the mortgagor and mortgagee, a party, and litigate and settle his right in that case. Barbour, Parties in Equity, 493, and the cases there cited." �In Hill V. Meeker, supra, it appeared that the title of the mortgagee to one of several tracts of land embraced in the mortgage was denied. The case was exactly analogous to the one at bar, and the court held that the complainant could take the decree of foreclosure, leaving the parties at liberty to litigate the title in an action at law. �The decree in this case will be modified so as to provide that said decree, and the sale thereunder, shall be without prejudice to the right of the respondent Brockway, by proper legal proceedings, to contest the legal title to the land de- Bcribed in the answer as claimed by him. ��� �