The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 34
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250 FEDERAL REPORTER
the First International Bank of South Bend, Wash. That bank filed
an answer disclaiming any interest in the land, an alleged cloud on the
title to which created by a mortgage to it was sought to be removed,
and consenting for the court to enter any decree desired by the three
parties who filed the cross-bill, provided costs were not taxed against it.
The record does not indicate that the cross-bill was thereafter called
to the attention of the court, or a decree on it sought. Some of the
appellants who join in the assignments of error are without any inter-
est in the fate of that collateral proceeding. It is not made to appear
that the institution and pendency of that proceeding were even brought
to the notice of the appellee, or that he resisted, or was interested in re-
sisting, the granting of the relief it sought. It seems that the answer
filed by the only party defendant to that proceeding was by itself
enough to dissipate the alleged cloud complained of. In the circum-
stances stated, the decree appealed from is not to be reversed because
of the court's failure to make disposition of the cross-bill.
[B] The conclusion is that the decree appealed from would not de-
prive the appellants of any right to which they are entitled, if it is so
modified as to permit each of them to prevent the ordered sale of his
land by paying his proportionate part of the amount decreed in favor
of the appellee, including costs, the amounts to be paid by the several
appellants to be in the same ratio to the- whole amount decreed that
the several tracts bought by them bear in acreage to the larger tract
foreclosed and decreed to be sold. Whatever right the appellants and
others in like- situation have under the above-quoted provision of the
deed of trust to have land embraced therein released is a derivative
one, resulting from their occupying the status of assigns of the grantor
in that instrument. If that grantor had not conveyed to others the
lands still unreleased, his privilege of having part of that land released
would have been conditioned upon his "payment of such part of the
entire unpaid purchase money as is prorated, owing and unpaid on
the land for which such release may be demanded." He would not
have been entitled to such an allotment of less than pro rata parts of
the unpaid purchase money against the several subdivisions of not less
than 640 acres each as would result in leaving a part of it unsecured
by the land remaining subject to the deed of trust. His assigns, as
a class or separately, have not acquired a privilege of having their
lands released on such terms as would lead to the result just mentioned.
In the argument of the case in this court the counsel for the appellee
expressed a willingness for the above-indicated modification of the
decree to be made. Such modification is accordingly ordered, with
direction that the amount required to be paid by each appellant to se-
cure a release of his land be ascertained and stated, and 30 days there-
after allowed to the several appellants to pay such amounts into the
registry of the court. Subject to compliance with this order, the de-
cree is affirmed, with costs against appellants.
Modified and affirmed.
BATTS, Circuit Judge (dissenting). I regret that I cannot entirely
concur in the conclusion reached by my Brethren. William Hurt, ap-
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/49/: accessed September 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.