OpenJurist

HIDDEN

v.

KRETZSCHMAR.

465

entitled to recover from the trustees, who refuse to act, what would be their lawful compensation if the trustees had acted. As to T. P. Branch, -who, with James 1\.. Simmons, most wrongfully, if the allegations of the bill are true, sold out and betrayed the rights of which they came into control,-he holds $100,000 in his proper person, to which he has no title whatever; and while the Central Railroad & Banking Company, and the parties who acted for it, may not be able to recover what they have wrongfully paid to him, he holds the sum he received as a trustee for the plaintiffs and other persons in interest who may be entitled to it, and who represent-in part, at least-the franchises and property of the Short-Line Company; and as the case now appears he should be he has received for the compelled to make restitution of the sum benefit of the trust which he attempted to defeat, and for the legal beneficiaries of that trust. It would seem that the court has ample power to compel this; and the decision of the court is that the injunction prayed for against all the parties against whom it is prayed shall be granted, and that a receiver be appointed to take charge of the assets of the Savannah,Dublin & Short-Line Railway Company and of the United States Construction & Improvement Company, so far as they are within the control of either of the defendants, or otherwise in the jurisdiction of the court; and to recover, in sU:Jh manner as may be deemed most effective, from T. P. Branch and the persons acting with him, the sum unll:\wfully paid to him by E. P. Alexander for the franchises,stocks, shares; and other property of the Savannah, Dublin & Western Railway Company, and that the case proceed regularly, as is usual in equity.

HIDDEN tl. KRETZSCHMAR

et

tIal·

. ,'(Ck"rcuit Oourt, D. Minnesota. February 21, 1889.)
MORTGAGES-ASSIGNMENT-PAROL WAIVER BY MORTGAGOR OP' CONDITIONS.

It is competent for the mortgagor to waive by parol the conditions specified in a written agreement, limiting the use of a mortgage. given to .ecure advances. and to cOllsent to its assignment as collateral security fOl a loan.

In Equity. Bill to foreclose mortgage. On final hearing. Kerr &and Pierce &- Wilkinson, for complainant. Leo &- George and John M. Boyle, for defendants.
NELSON, J. This suit is brought to foreclose a mortgage executed by the defendant Carl Kretzschmar to T. S. Coffin, to secure the payment of his note for the sum of $10,000. The note and mortgage were assigned as collateral security for the payment of a note of $5,000, executed on the 14th day of June, 1884, at Boston, Mass., by the Red Lake Milling & Lumber Company, fl. corporation of the state of Minnesota, to the complainl\nt, Hidden, a..citizen of the state of Maine, and payable v.371<'.no.l0-30

I'EDERAL REPORTER,

vol-87.

Alpm24, 1885. At the' time of the execution of the note andmortgaga for'UO,OOO,an agreement in writing was entered into between the defendantearl Kretzschmar. and T.S. Coffin, the mortgagee, specifying the conditions upon which it was executed, and the.considerations influencing the mortgagor. This instrument was on' record in the same of.fiee in which the mortgage was recorded, and, I think, was notice to the complainant of the exact facts therein stated, and for what purpose the mortgage.was given. I Although T. S. Coffin, the mortgagee, held this mortgage to secure any advances, made by him to the corporation, and for.sel'v:ices rendered in the past, and to be rendered in the future, the evidenceissatisfactory that the defendant Carl Kretzschmar consented that T. S. Coffin might use it, as he did, to secure a loan of $5,000 to the corporation,-at that time being in need of money, and in avery embarrassing financial condition. It was entirely competent for the mortgagor ,to waive by parol the conditions mentioned in the agreement upon whi¢h the mortgage was executed, and assent to the use: of the mortgage need for money. The assignfor the purpose of meeting the ment of the inortgage as collateral security for the Joan of 85,000 from the complainant appears from .the evidence to have been made with the knowledge and consent of the defendant Carl Kretzschmar. True, in .his testimony there are indications of remonstrance to such a use of the mortF;age, and. some suspicious circumstances are apparent, but no fair · inference from the whole evidence would warrant me in denying the re.lief asked.. ' The evidence of the witnesses introduced by theoomplainant, who are unimpeached, entitle him to a decree. for a foreclosure to satisfy the amount due. No argument has been made or filed by the counsel of defendants, and they appear to have abandoned the case. The interest of defendant Anna Kretzschmar in the property accrued since the mortgage lien and the note for 85,000. Decree will be entered due: PriuC'!pal, $5,000; interest in favor of complainant. (6 per cent per annum) from June 14, 1884, to February 21, 1889, 81,507; insurance paid, $225; protest, $2.04j attorneys' fees, 8}M-

ARMSTRONG 11. CHElUCAL NAT. BAH.

(OW"uit Oourt, 8. D. New York. February il,1889.)

1.

.' T o a bill for an accounting for the surplus of securities pledged for ad. ;-ances thereafter to be Made, averments in the allswer of facts such. as the prior s.tate of the parties' accounts,are needless since these facts may be · proved IJnder. any other a,verment.
SAME..

1!:QUITY-AooOUNTING-PLJ1lADING-PLEDGE.

'.

.

S.

Averments referring to facts entitling defendant to affirmatlve relief are only prcperfor a cross-bill, and may be expunged from an answer. .

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