PENDLETON v. VIGNEAUX

PENDLETON v. VIGNEAUX. (Circuit Court, N. D. Georgia. February 2, 1909.) Moktgages (§ 902) — Suit to Foreclose — Order of Sale. Where tlie defendant in a suit to foreclose a mortgage died before a decree had been entered and pending a hearing on exceptions taken by him to the master’s report, an order of sale cannot bo issued merely on notice to his widow, where neither she nor a personal representative of defendant has been made a party and no decree has been taken. FEd. Note. — For other cases, see Mortgages, Cent. Dig. § 1489; Dec. Dig. § 502. Foreclosure in federal courts, see note to Seattle L. S. & E. Ity. Oo. v. Union Trust Co., 21 C. C. A. 528.1 In Equity. On motion for an order to show cause. Wimbish, Watkins & Kllis, for complainant. W. T. Moyers and W. H. Terrell, for defendant. For other cases see same topic & § numrijk in Doc. & Am. D’gs. 1907 to date, & TCep’r Indexes [MAJORITY — NEWMAN, District Judge.] NEWMAN, District Judge. J am not satisfied with the procedure adopted in this case. The prayer is that the court grant an order requiring the widow of B. Vigneaux to show cause why an order should not be made to sell the property described in the petition in, this cause. No decree has yet been taken in this case. It seems to have been referred to a master. He reported in favor of complainant, and that a decree of foreclosure should be entered, to which report exceptions were filed by B. Vigneaux, and pending the hearing of these exceptions B. Vigneaux died. Subsequently Courtlaudt S. Winn was appointed administrator of B. Vigueaux’s estafe, and an effort was made to make him a party; but before he was made a party, or at least before any decree was taken agaiust him, he resigned as administrator. In that situation the effort is as against Mrs. B. Vigneaux to take an order to sell the land in controversy. It seems to me to be absolutely necessary that there should be some decree agaiust Mrs. B. Vigneaux before a sale of the laud can be ordered. If she is in possession and control of the land, it would appear to be a simple matter to make her a party to the proceeding, or to take some steps to have Vigneaux’?• estate represented, or at all events in some way to get a decree of foreclosure before a sale should be ordered or made. '.['he motion for an order decreeing a sale of the land is denied.