Joseph Stackpole, Appellant, v. Henry Robbins et al., Commissioners, etc., Respondents

Joseph Stackpole, Appellant, v. Henry Robbins et al., Commissioners, etc., Respondents. (Argued September 21, 1871; decided January term, 1872.) This action was brought to restrain defendants, as loan commissioners, from foreclosing a mortgage executed to their predecessors upon lands owned by plaintiff. A prior attempt had been made to foreclose the same mortgage by defendants’ predecessors. The premises were sold and deeded by the loan commissioners, and a new mortgage taken back. Plaintiff brought suit against all .the parties, asking to have the sale and all the subsequent transfers and the second mortgage set aside and canceled, on the ground of irregularities, and that the sale was collusive and fraudulent as against him. He succeeded in that suit, and judgment was rendered therein as asked for. Defendants thereupon recommenced foreclosure of the first mortgage, which this action is brought to restrain; plaintiff claiming that the prior foreclosure exhausted the power of sale and rendered the -mortgage void, and that the vacation of the sale did not revive the extinguished lien. Feld, that the judgment in the former suit left the parties in •the precise position occupied by them before the first foreclosure was attempted; that it did not affect the validity of the original mortgage, and that defendants had the right to foreclose the same. John H. Reynolds for the appellant. M. I. Townsend for the respondents. [MAJORITY] Gray, 0., reads for affirmance. All concur. Judgment affirmed, with costs.