The grounds of the petition are that the court inadvertently failed to determine whether a second mortgagee in proceeding to foreclose should first pay off the first mortgage and whether the foreclosure of the Hackfeld mortgages was illegal or void. The omission was not through inadvertence.. The court held that the earlier mortgage covered certain after-acquired property which was also included in the junior mortgages and that upon the allegations of the bill the S. N. Oastle Estate, Limited, was entitled to a declaration that the mortgage of 1884 is superior as a lien to_ those of H. *146Hackfeld & Co., and in effect sustained the bill as one to remove a cloud from title. Having found that, to this extent at least, there was equity in the bill, it was unnecessary to decide, on the demurrers, the two questions above mentioned or to determine what other relief, if any, could appropriately be granted. Subsequent developments may render it unnecessary to pass upon these precise issues at all or, if they do not, the court may be in a better position to determine them after the hearing in the light of the evidence adduced. The petition is denied without argument under Rule 5.
Gasble & Withington, Alfred L. Castle and G. A. Davis for complainants. Thompson, Clemons & Wilder and Smith, Warren & Hemenwmj for respondents.S. N. Castle Estate, Ltd. v. Haneberg
Lead Opinion