I"EDERAL REPORTER i
V. ZANlilSVIL1.E, MT.
Ry. Co. et al.
s. D. 0Mc. E. D;
October 17, 1892.)
The title,' ',r"ai,lW,al'bOIid,s issued a,D,didelivered to a cOntractor in ,cons,ideration of bis prQmise to bulld certain traok ,ill ,in the c.ontraotor, with the right to pledge or sell ,tbem j and tbe purchaser or although has full of the tetms 01' thecontraot, and of the faotthat only four mIles of the nme contracted for built, can reoover their full value as against the receiver of the road.
In Equity. Bill by the Mercantile Trust Company of New York against the Zanesville, Mt. Vernon & Marion Railway Company and others to foreclose a mortgage. The receiver of the railway filed a cross On demurrer to the cross bill. bill to scale down the mortgage, Sustained, and the cross bill dismissed. A. cross complainant. W. H.SaffUl'd, ,John,J. Sroddard, and Gilbert D. Munsen, for complainant. MosesM.i(hanger, J.B. F'rYraker, and A. J. Sheppard, for respondents. SAGE, District Judge. ' This case is before the court on demurrer to the cross bill of the receiver of the Zanesville, Mt. Vernon & Marion The complainant's bill is for'foraclosure of a mortgagesecuring,;'b6ndsissti:edby said railway company. The cross bill sets up, among other things, that the mortgage bonds secured by the deed, of trust given to the complainant were authorized and direeted to be issued by underand by virtue of a contract in writing dated"August 24, 1888,and by it with one Chase Andrews. , 'By the terrnsofthis contract it was provided that he should haveal1 issue of 8225,000 of bonds, inconsideration whereof, and upon the funher consideration of $225,000 of the capital stock of said railway cOIIl'PanY,hebound himself, his heirs and assigns, to fully construct and' equip that portion of said· company's railroad known as the "Belt Lilia" With a trackage of not less ihan nine miles. It was further before the commenceprovided that the bonds'were to be issued to ment of said work, and they were accordingly so issned and delivered for said purpose, and fot1!'0other. 'A copy of the contract is attached to and made part of the bill. " The cross'biH further'sMs forth' that'Andrews and his assigns failed and refused, arid still to fulfill the obligations imposed upon them by the terms of said contract; in that they failed and refused, and still refuse, to build said beltlihe; excepting only about four miles thereof; and that he sold or hypothecated all of the bonds so issued and deliveredto him to persons who, hadfuINrhowledge of the termsofthe contract. and of the conditl0nsupoD which said bonds were issued; also that said persons took the same with full knowledge that Andrews had
MASON tI. BENNETT.
not built said belt line, and was in default, except as above Iltated. Wherefore the cross complainant insists that the holders of said bonds are not entitled to receive from the proceeds of sale under the foreclosure payments upon the principal and interest of said bonds, but only upon the proportion thereof that the value of the four miles of said belt line that has been built flustainsto the value of the whole nine miles, and prays that the bonds may be scaled down accordingly. The demurrer must be sustained. The bonds were issued before the commencement of the work, in exact accordance with the stipulations of the contract, and Andrews was then invested with the title to them, and had the right to pledge or sell them. The averments that the purchaser or pledgee had full knowledge of the terms of the contract, and of the fact that Andrews had built only four miles of the belt line, are therefore wholly immaterial. It may be properly inferred from the contract thatjt was the intention of the parties that Andrews should have the bOnds in advance of the performance'of the work which hewasto do, in order to enable him by negotiating them to procure the funds he would require. The cross bill, therefore, does not state a case entitling the cross complainant to any relief, and it will be dismissed.
M.AsoN '11. BENNETT.
(mstrlct Court, D. Alaska. July, 1892.),
Under, Code Or. § 278, in force in Alaska, the return day of an execution is ascer· tained 6y computing 60 days from the day of its receipt by the marshal, and no' from the day of its issuance. When a levy is mil-de an execution before the return day thereof, the mar. shal may make the sale after the return day without new proceB8. '
SAMB-LEVY-SALE AFTER RRTURN DAY.
S.uol:E-SALB-CONFIRlIfATION-INADEQUACY OF PRICE.
Under Code Or. § 296, in force in Alaska, an execution sale cannot be set aside for mere inadequacy of price, in the absence of fraud, collusion, or substantial irregularity, to the iY).jury of t1!e complaining party, especially when the property consists of an undeveloped mining claim, the value of which is conjectural and speculative. '
At Law. Action by George M. Mason against William M. Bennett. Motion to confirm an execution sale. Granted. Delaney It Gamel and J. F. Malony, for plaintiff. John G. Heid and a. S. John80'Yl, for defendant. TRUITT, District Judge. The rer-ord in this case shows that "the plaintiff, on the 8th (lay of March, 1892, in this court, recovered judgment against defendant for the sum of $2,170.48, with a decree of foreclosure of the mortgage given to; secure the note sued upon herein, and for the sale of the mortgaged premises, which includes the real property, for the sale of which an order of confirmation is asked by this motion.