Page:Federal Reporter, 1st Series, Volume 9.djvu/550

. COONS V, TOUE. . 533 �measure of relief to which the complainants are justly entitled. Tome's judgment, as we have seen, is not tainted with actual fraud. It representa a bonajide debt, and wiiile it cannot be allowed priority over the judgraent of the complainants, it is not to be treated as a nullity, or postponed to the complainant's judgment. Bquity, how^. ever, does require that the complainant's judgment and Tome's said judgment, in respect to the commencement of lien, shall be placed on a footing of equality, and shall share pro rata in the proceeds of the real estate available for their payment. �The mortgage above recited contains a provision that, in case of default exceeding 90 days in the payment of auy of the interest cou- pons, the.whole principal of all the aforesaid bonds "shall thereupon beeome due and payable," etc. Such default having occurred, Jacob Tome, who, we have seen, owned all the bonds, on November 23, 1878, brought an action in his owu name in this court against the Minnequa Springs Improvement Company to reoover tho principal of the bonds; and on December 4, 1878, for want of an affidavit of defence, judgment under the rules of court was entered against the corporation for $260,000. The complainants impeach this judgment on the ground that Tome could not enforce the clause whereby the principal of the bonds beoame due, except through Benjamin S. Bentley, the trustee named in the mortgage, or without notice to him, and a written request flrst made upon him to proceed according to the provisions contained in the mortgage. But what right baye the complainants to set up the alleged irregularitieS ? The proceedings in that suit were altogether adversary, and as the corporation suiiered judgment to go by default, and is not complaining, why should Coons & Braine be permitted to question the regularity of the proceedings? Moreover, this judgment having been entered after the complainants' lien had attached, I am at a loss to see how they are in anywise prejudiced. Their prayers for relief, so far as they relate to this judgment, must, therefore, be ref used. �It appears that in November and December, 1878, the Minnequa House and its contents, etc., were destroyed by fire. This property was insured for the benefit of the holders of said bonds, and by the terms of the policies the loss was payable to Bentley, the trustee. After the fire, Bentley executed to Jacob Tome a power of attomey author- izing him to colleet the Insurance. moneys. Pursuant to this a,uthor- ity, Toipe collected about $43,000,— from the insurance on the prem- i^s .about $19,000,; — and the balance on account of the buildings. The wholo of this money Tome applied to the principal of his debt ��� �