Page:Federal Reporter, 1st Series, Volume 8.djvu/153

CLAFLIN V. SOUTH CABOLINi E. CO, 139 �substitution of the bond for the property, and an extinguishment of the mortgage lien to that estent. �In the present condition of the case, no decree can be rendered against the trustees for moneys in their hands, or -which have been misappropriated. They have never been called on to ans'wer, and there are no allegations whatever against them. It will be time enough to consider their liability when proceedings in that behalf shall have been instituted in some appropriate form. �As to property sold and conveyed by the trustees of both mortgages, the lien of the mortgages is gone, and the title of the purchasers good. In respect to purchasers who have no conveyances from the trustees, the case is in no condition for a decree under the present pleadings, and, with the present parties, all that can be done is to order a sale of the property not actually conveyed by the second mortgage trustees, leaving the purchasers , to such remedies as they may have. �.0. As to the attachment by the People's Savings Bank in Georgia: �After the great length to which this opinion has already been ex- tended, I am not inclined to consider this question in detail. The conclusion I have reached is that the lien of the attachment is supe- rior to that of the mortgage in Georgia. The first record of the mort- gage in that state was not good as against attaching creditors, and it is not pretended that this bank was not at liberty to pursue such remedies as the law gave for the collection of debts. As the amount is comparatively small, and it is betterto have the property sold free of such a lien, I think an order should be made directing the receiver to pay any balance: that may remain due after the funds reached by the process of garnishment and not actually paid ovor to the receiver have been applied, as far as they will go, to the satisfaction of the judgment that has been rendered in this action in the Georgia court. �6. As.to the wharf property in Charleston, which is subject to the lien of certain special mortgages : �There is no dispute about the priority of the lien of the special mortgages on this property, or aS to the amount which is due. The decree should. order a sale, subject to these liens, and providing that the purchaser should not by his purchase become personally bound for the payment of any balance of the debt that may remain after the mortgaged property is exhausted, if he should not desire to pay oEf the eneumbrances and keep the property. �At the close of the argument it was suggested that a reference ought to be made to determine what property waa cotered by the lien ��� �