tion as to the validity or sufficiel1cy of the instrument which their grantor accepted from the sheriff as a deed in compliance with the order of the court. A decree will be entered in favor of the defendants, confirming their title to the land, as against the c o m p l a i n a n t . '
ROBINSON v. ALABAMA & G. MANUF'G Co.
(Oircuit Court, N.
Georgia. July 6, 1899
;. A. made by a manufactllzoingo corporation to secure its bonds empowerlld'tlle trustees, on default of interest payments, to sell the property, "if, after notioe'is served on the president of said company, the same shall remain unpaid six months after such default. "- ,Hlild., that when the trustees sued to fore'dose;, Instead of selling under the power, it was unnecessary to aver the giving of , ,notioe Of ,default to the defendant. I ,
Qne of three trustees in a trust-deed is entitled to sue alone for foreclosure when he avers that one of the others is dead, and that the remaining one, at a sale of tlle,pl;'OPerty under a decree of a state court, claimed to be interested in the purohW thereof, and "is inwrested adversely to your orator as trustee of said bond· holders."
2.. B.utJl-lBI1(GLll TRUSTIlIl'S :RIGHT TO BUJI:-I'LIlADJNG.
In "Equity. Suit by J. J. Robinson, trustee, t() foreclose a trustgiyenby the Ala:j)ama & Georgia ManUfacturing Company to secure certain "bonds. 0ndemurrer to bill. Abbott &7 Smith, for co'uirplainants. N. J. &7 T. A. Hammond, respondents. Be,fore LAMAR, Justice, and NEWMAN, J.
PER CtntrAM. There are five grounds for demurrer, and for com'enience we consider them in inverse order. the first ground thus considered is that" said complainant does not aver when default in the payme11t of interest on said bonds, or any of them, was made known to the trustees, or either of them, nor that any notice thereof has been sarved on the president of the said Alabama & Georgia Manufacturing Company, both of which are conditions precedent to the exercise of authority and duty, by said mortgage conferred on said trustees or a majority of them." The language of the trust-deed, so far as applicable.to th\sgrollnd of demurrer, is as follows: JOIn order, and in the fullest manner, to provide for the payment of bonds aJoresaid;and the interest thereon, at the tillle and place when and where the same'shail respectively fall due and be payable, the said J. G. Hobinsoll. W. C. Yancey. and W.'l"Huguley, or a majority of their survivors or successors, are ,hereby authorized and empowered, should default be made in the payment of said bqnds when they fall or in the paYll)ent of the interest on. said bonds as it shall accrue, they, immediately on such default, being made known by the holder or holders of the coupons attached thereto, an.d a1ternotlce is served upon the president of -aid complll.:, the same
ROBINSON ,. ALAB.UU. " G·. MANUF'G CO.
sball remain unpaid for sIx montbs after auch default shall have been made in the payment of said interest or principal, as the case may be, and at the request of anyone or more of the holdera of said bonds or coupons, and without any other or further authority from the said Alabama & Georgia Manufacturing Company, upon giving 60 days' notice Of the time and place of the sale, together with a description of the property, in a newspaper published in Atlanta, La Grange, and West Point, Ga., to. proceed to sell at public auction," etc. -Then providing for the of sale, and the application of the proceeds. After alleging default in the payment of the coupons due July, 1890, and January, 1891, and that more than six: months had elapsed since the July coupons fell due, and that they still remain unpaid, and that no money 'Was On deposit at the place of payment at the time the said July coupons fell due, and none 'deposited within six: months thereafter, and that all or nearly all of said July coupons remained unpaid, as orator is informed by the holders thereof, the bill proceeds: "Orator has been notified since the expiration of the six mOIlths after the said July coupons fell due. by a majority of seven bondholderti in amount, of their election to treat the whole of said principal sum named in the bonda as due under the provisions of saId bonda; and orator has been requested to begin proceedings to secure the property pledged for the payment of said indebtedness; Rl}dhe deems it to the best; of theholdera of.md bonds that he should do so." . . .
It will be seen that even if this provision'applies in a case where foreinstead. of the trustees closure proceedings in the court are proceeding to advertise and sellas authorized by the trust-deed, the alle:. gation that is la:ckingis that notice was served. upon the president of the (lompany. It the trustee was proceeding' to sell the property himself under the authority of the a stdct compliance with this provision might be demanded; but, inasmuch as he is proceedinp; in the courts, asking for a decree of foreclosure, we are of the opinion that the allegation· of notice to the president is unnecessary. It is alleged that the Ala. bama & Georgia Manufacturing Company has ceased to do business and keep an office in West Point, Oa., or elsewhere, forthe transaction of business, and that the property covered by the trustees has been sold under the decree of the state court, and bought by pal'tieswho, having · organized. the Huguley Manufacturing Company, are now in possession of the same. It might be argued, if it were necessary so to do, that this (londition of affairs would dispense with the allegation of notice to the president, even if it were otherwise necessary; but, in view of the opinion expressed above, further discussion of it is unnecessary·. The other grounds of demurrer may, we think, be considered together; and they are, substantiall,y, that J. J. Robinson, who alone bdngs this bill, is unauthorized to sue alone. The allegation of the bill is tbat Yancey, one of trustees, is dead, and this, it is conceded, disposes of the matter so far as he is concerned. The further allegation is that Aid W. T. Huguley, defendant herein, and named as one oithe trustees for said bondholders, claimed, at the time of said sale, to be interested in the purchase of said p!-,operty t and now claims also to be intereB¥ U.
FEDERAL, BlU'OKTER,' vol.
the PT?perty: arid: assets of"said Hugnley ManufacturingGompany. He is,inter'eSted' as trustee of sa,id 'bondholders." 'l'?e is the sale qn9er the decree of t4e!l)4te court, be" is true, that the vroperty wassoM under the decree of the state, court, subject to this , trust-deed,itnewrtheless, We think"appears from the foregoing allegations that Huguley's interest is adverse to that of the bondholders, and CpI;lSElqUently to show his incapacity ,as a party cou1p!ainant. It might have been allegl;ld with ,wP:r:e definiteness, but, conceding the to be true, as, t,l;le demunrerdoes, we think,hi&adverse inter8,\:1;:fficiently appears. It ma)t "be mentioned that ,thE;l trust-deed is signed, :by W. T. and secretary of the Alabama & Geor¢a Manufacturing Qompany, 130; that it would seem that his interest hl1llbeen adverse to that of tile trust created by, the deed from the beginning. We think' the, be overruled upon all the grQll,uds ordered.
CENTRAL TRUST eo. OF NEw YoR'Je
OoItPORATJONS STOCB:XotD ERS. ."
MA.RIETTA &N. G. R. Co.
N. D.(Je01'(/fa;, July 5, 189L)
" Oll' MORTGAGB .:... 'INTERVENTION BY , ,
: 1n'/I; to foreclose a raif1roatimort!raglil,certaln pe"'On8: to be made parties defendant, allegiplJ: that the del/:lndant company wasma.de ;up by an illegal consolidation of three other companieili'inone of which they werestockbolders' that thElY never consel)ttjd, or recogni,,/ld the validity of, th!l: cpnsolidation, and were not bound by it or by the act of the new company creatingtlIjl mortgage; that ih,e, b,:e,W,', co,mp,an y "i. pelh'al'Sconclu,dM'b1 its, conduct in, the pr,emises from making to the suIt; the origilWol company, of which they were members, hadQQoft!..cer, or upon whom they could caU t.o make, defense for thenl.;atldtbat the counsel fl)r:,the cODlib'11dated companydeclilled to set up the defensewhioh they, Held, that tblllle facts gave no right to intervene as dElfllndal\ts, especially as there WWiI no charge of fraud or collusion, and the proper remedy is, by an 'independent suito·
In Equity. Bill:tQ foreclose railroadrnortgage. On petition of inter.. vention; Butler, Stillmrin& Hubbl'lrd and H. B. Tompkins, for complainant. Abbott'& 8mlith and O. 'D. 'Phillips,' for ,respondent. '
NEWMAN, ,J.-The above-named caS!! If! a suit in equity, brought by complainant, as the, trustee for oertain holders of bonds of the defend&rtt' COl'poratiot1,to'foreclose the mortgage made to secure 8uch bonds. On this billa receiver has, been appOitltedby the court, arid the usual in:tci'fefence with him allowed., 'The receiver is in oharge of and:is operating,the same by order of the court. D.PliUIips 'and others application' tCi tliecourt for per;' mission to be made partiesdefenoant in'said case, and with leave thereafter'tti pleltlf()r'answer tif!J!uch defendants.,' The peti'tionis as follows:-