#### Com. ex rel. Hooton *v.*Wilmington & Northern R. R. Co.

In the case of Pennsylvania railroads consolidated with those of other states, under the Act of March 24, 1865, the provisions of the Act of March 13, 1847, requiring the president to be a citizen of the state and resident therein, where the works and property of a railroad company are principally located in Pennsylvania, do not apply.

A mortgage on a railroad recited an intention, on the part of the directors, of funding coupons of railroad bonds accompanying another mortgage. Before the new bonds were issued, the mortgage with the recital was released, the release containing a misrecital of the mortgage-book. A new mortgage was placed upon the railroad containing no provision for funding the bonds. The franchises were afterwards sold at judicial sale and a new company organized. The holder of the coupons recited in the released mortgage petitioned for a mandamus to compel the funding of his coupons by the reorganized company. *Held,*that he was not entitled to the writ.

Feb. 13, 1889.

Error, No. 425, Jan. T., 1888, to C. P. Chester Co., to review a judgment for defendant in an alternative mandamus, tried before the court without a jury, at Aug. T., 1886, No. 75. Green & Clark, JJ., absent.

The petition for mandamus, filed June 14, 1886, averred, in substance (more fully set out in the opinion of the court below), that, on Jan. 19, 1874, the Wilmington & Reading R. R. Co., which already had two mortgages on its main line, placed a mortgage on a branch road for $500,000, under the Act of March 26, 1869. This mortgage recited that the company had built the branch road with the money of the company, and it was deemed expedient by the directors to fund certain coupons of the second mortgage on the main line, held by plaintiff, by the issue of scrip, convertible into first mortgage bonds. The petition further averred that proceedings were had upon the first mortgage of the main line by which the main line was sold, and the purchasers organized therefrom the defendant company, which subsequently, purchased the branch road, subject to the conditions set forth in the mortgage of Jan. 19, 1874. The petition further averred tender and demand.

An alternative writ was thereupon issued.

The return, signed by the president of defendant company, averred that the company was not liable, because it was the owner of the franchises formerly owned by the Wilmington & Reading R. R. Co. by purchase at judicial sales, free from all liens and liabilities by reason of any mortgages or other incumbrances, as would appear by reference to a release, dated July 14, 1874, and proceedings in the U. S. Circuit Court for the sale of the branch road. The release recited that there were doubts as to the validity of the mortgage of Jan. 19, 1874, and referred to it as recorded in Berks county in Mortgage Book No. “30,” page 95. The proceedings in the circuit court showed a judicial sale of the branch road under a mortgage executed as a substitute for the one released.

Plaintiff filed a traverse alleging, inter alia, that the return did not aver that a release of a mortgage in Mortgage Book No. 20, page *53995, Was executed, but that the release that was executed purported to be the release of a mortgage in Mortgage Book No. 30, page 95.

Plaintiff also filed a demurrer, specifying, inter alia, as follows:

“ The plaintiffs demur to the defendant’s return in this, that the president of the company is not a citizen of Pennsylvania, or resident therein, but resides in Delaware, and is, by reason thereof, incompetent in law to act as president or to sign the return in behalf of the company.”

The demurrer was overruled by the court below, in the following opinion, by Futhey, P. J. :

“The Act of March 13, 1847, P. L. 333, provides that railroad companies, whose works and property are principally located within the state of Pennsylvania, shall elect a majority of citizens resident within the state, as managers or directors, of which majority the president shall, in all cases, be one, and that such election shall be held within the state, and that their principal office, for the transaction of their corporate business shall be at some convenient place within the state, and not elsewhere, and that any election not made in compliance with the directions of this Act shall be void. And the Act of Feb. 14, 1868, P. L. 40, provides that companies incorporated under the Act of Feb. 19, 1849, entitled ‘An act relating to Railroad Companies,’ shall be subject to the provisions of the Act of 1847.

“ The Act of March 24, 1865, which is a supplement to the Act 1849, provides for the merger and consolidation of the capital stock, franchises and properties of railroad companies organized under the laws of Pennsylvania with those of similar companies organized under the laws of similar states, where the roads of the consolidated company form a continuous line of railway, and that the consolidated company shall become a new corporation and take the place of the old companies. The Act further provides that the terms of consolidation shall prescribe, among other things, the number of the directors and other officers thereof, and who shall be the first directors and officers and their places of residence, and when and how directors shall be chosen, and such other details as may be necessary to perfect the new organization and the consolidation of the companies or railroads ; and that the new companies, after such consolidation and merger, shall establish such offices as may be desirable, one of which shall be at some point in this commonwealth, on the line of the road. It will be seen at a glance that there is a variance between the provisions of the Act of 1865 and those of the Act of 1847. By the latter Act, the election for directors must be held in this state. A majority of the directors must be citizens and resident thereof, and the president must be one of such majority, and the *principal office*for the transaction of business must be in this state, “ and not elsewhere.” By the Act of 1865, the consolidated companies, we apprehend, are not bound by these restrictions. The directors of the companies proposing to consolidate are authorized to prescribe how *540and when directors are to be chosen, to fix their number, to name who shall be the first directors and their places of residence, and to establish offices, one of which shall be in this commonwealth. It is not required that, in such consolidated company, a majority of the directors shall be residents of this state, nor that the election of directors shall be held therein, nor that the principal office shall be therein. They must have an office in the state, but their principal office may be in another state, through or into which the consolidated road runs.

“ In our opinion, the provisions of the Act of 1847, that the president shall be a citizen and resident of this state and one of a majority of directors resident in this state, does not apply to the case of roads consolidated and merged under the Act of 1865, but that, in such case, the articles of consolidation or merger may prescribe the manner in which the president shall be elected, and that he may be a resident of either or any state through which the consolidated road runs.

“ In the case before us, the articles provide that the number of directors shall be seven, to be elected as therein prescribed, and that the president shall be selected by the board of directors from their own number. The president at this time is H. A. Dupont, a member of the board of directors, who resides in Delaware. The principal office of the company is located in Wilmington, in that state. We must treat Mr. Dupont in this proceeding as the lawful president, and the answer of the company, through him, as the proper answer of the company.”

The plea of the statute of limitations was afterwards filed, and the case tried by the court without the aid of a jury.

On the trial, Peter S. Ermold was asked: “ Q. You say you were a witness to the release which directed the satisfaction of the mortgage of Jan. 19, 1874 ? (It being the mortgage recorded in No. 20.) A. Yes, sir. Q. Was that the intention of that fact at that time ? (Objected to, objection overruled and exception for plaintiff.) A. That was the intention.” [30]

Abraham Gibbons was asked: “ Was this release intended to release the mortgage of Jan. 19, 1874. (Paper shown witness. Release of mortgage in No. 30. Objected to, objection overruled and exception for plaintiff.) A. I have no doubt of the fact that that was intended to release that particular mortgage. Q. Was it intended to release the mortgage upon which the bonds were issued that were destroyed ? A. I have no doubt that it was so, although I cannot positively say; I have no doubt that that was the intention.” [31]

George Richardson was asked: “ Q. Did the directors authorize the destruction of the bonds, and the satisfaction of the mortgage (meaning the mortgage recorded in No. 20) ? (Objected to, objection overruled and exception for plaintiff.) A. Yes, sir. Q. Did you satisfy the mortgage, and destroy the bonds in pursuance *541thereof ? A. We executed that paper as a satisfaction of the first mortgage. (Referring to lease.) Q. It was that particular mortgage that was intended to be satisfied by this release ? A. Yes, sir. Q. It was the mortgage of January 19th, 1874, which was intended to be satisfied by the release dated July 14th, 1874. A. Yes, sir. Q. There were but two mortgages on the branch road ? A. That is all. Q. The one of January 19,1874, and the one of July 6, 1874? A. I do not recollect the dates, but those were the two mortgages.” [32]

Abraham Gibbons was further asked: “ Q. Did you execute this release of mortgage ? (Objected to. Objection overruled. Exception noted for plaintiff, on the ground that the release would not be evidence of the discharge of the mortgage in No. 20, without showing that the cestue que trusts united in the release.) Q. Are these the signatures of Edward Brooke and Geo. Richardson to that release ? (Paper shown witness. It was the release purporting to release a mortgage in No. 30.) A. That is the signature of George Richardson, and I suppose it to be that of Edward Brooke, but I am not so certain about that as I never saw him write his name. Q. This release dated July 14, 1874, was executed by you as one of the parties ? A. Yes, sir. Q. After that time was there a second or another mortgage for a similar amount executed ? A. Yes, sir. *Q.*And you as the trustees issued bonds on it? A. Yes, sir, bonds were issued. Q. Was the execution of that release after the destruction of those other bonds, or not? A. I suppose it was after the destruction of those other bonds.” [33]

F. C. Hooton, the relator, was asked: “ Q. To whom do these bonds belong upon which this suit is brought. A. These bonds belong to the holder of the bonds according to the face. They are payable to the holder. All the bonds in suit I have in my possession. Two of these bonds are my property. The bonds that are my property are two $100 bonds. The other bonds were delivered to me by clients for the purpose of bringing this suit.” [37]

The court found the facts to be as follows, in an opinion by Futhey, P. J:

“ The Wilmington and Reading Railroad Co. was duly incorporated, and constructed a railroad extending from Wilmington, in the state of Delaware, to Birdsboro, in Berks county, Pennsylvania.

“ On this road the company placed two mortgages to secure bonds issued by them; a first mortgage dated March 3, 1868, for $1,250,000, and a second mortgage dated March 18, 1870, for $1,-750,000. The company then constructed what is called a branch road, extending from Birdsboro to Poplar Neck, in the same county, a distance of seven miles, and there connecting with the Berks County Railroad. The company also leased from the Berks County Railroad Co., for a term of nine hundred and ninety-nine years, that portion of their road extending from Poplar Neck to Reading, thus securing a continuous line of Railroad from Wilmington to Reading.

*542“AnAct of Assembly, passed March 26, 1869, P. L. 546, provided ‘ That whenever the Wilmington and Reading Railroad Co. shall construct any branch or lateral railroad, not exceeding nine miles in length, it shall and may be lawful for the president and directors of the' said company to borrow money on mortgage in such sums and at such rate of interest, not exceeding seven per cent., as they may think proper, for the construction of such branch or lateral railroad, and mortgage the same for the purpose thereof, provided that said company shall not issue bonds for a less denomination than one hundred dollars, and that the mortgage given to secure their payment shall be the first lien upon such branch or lateral railroad.’

“ In pursuance of the authority thus conferred, the said company placed a mortgage upon this branch railroad of $500,000, dated Jan. 19, 1874, and prepared bonds to that amount ready for issuance. The trustees named in the mortgage were Edw’d Brooke, Abraham Gibbons and Geo. Richardson. ■ Tjus mortgage contained a recital, of which the following is a part: ‘ Whereas an Act was passed by the General Assembly of the Commonwealth of Pennsylvania, approved the 26th day of March, A. D. 1869, to authorize the Wilmington and Reading Railroad Co. to raise money by mortgage to build any branch or lateral railroad authorized by their charter not exceeding nine miles in length; and whereas the Wilmington and Reading Railroad Company has constructed a branch railroad, extending from Birdsboro to Poplar Neck, on the farm of Ezra High, in Berks county, Pennsylvania, and connecting at Birdsboro with the main line of the Wilmington and Reading Railroad, and at Poplar Neck with the Berks County Railroad, the said branch road being about seven miles in length; and whereas the Wilmington and Reading Railroad Co. has leased for the term of nine hundred and ninety-nine years that portion of the Berks County Railroad which leads from the end of the before-mentioned branch road to Penn street, in the city of Reading; and whereas, in the construction of the said branch road, a large amount of the funds of the Wilmington and Reading Railroad Co. has been expended, and it has been deemed expedient by the directors of the said company to fund coupons seven, eight, nine, ten, eleven, twelve, thirteen and fourteen of the second mortgage bonds of the said company up to and including July 1st, 1877, by the issue of scrip, convertible into first mortgage bonds, to be issued under the authority of the before-mentioned Act of the Legislature of the state of Pennsylvania, approved March 26, 1869, the object of said funding being to enable the said company to reimburse to itself the money expended in the said branch road; and whereas the President and Directors of the said The Wilmington and Reading Railroad Co. have ordered that a mortgage, amounting to five hundred thousand dollars, payable in thirty years, be made of the said branch road under the authority of the aforesaid Act of the Legislature of the state of Pennsylvania, *543to Edw’d Brooke, Abraham Gibbons and Geo. Richardson, trustees, said mortgage to bear interest at the rate of six per cent, per annum; and whereas, for the purpose of carrying out the aforesaid objects, the said The Wilmington and Reading Railroad Co. has made and delivered' to the parties of the second' part an issue of its bonds amounting in the aggregate to five hundred thousand dollars, and consisting of [here the number and amounts of bonds are inserted and the tenor, and form of the bonds are given, and then follows the mortgage in the ordinary form of such instruments.] The bonds contain this provision: ‘This bond shall not become obligatory until it shall have been authenticated by a certificate endorsed hereon and duly signed by the trustees.’ This mortgage was recorded in the Recorder’s office of Berks county, in Mortgage Book No. 20, page 95-

“ While these bonds were still in hand, in bulk and unissued, doubts arose as to the validity of the mortgage and the question was submitted to counsel, who, on April 18th, 1874, gave the company his opinion that [he was not clear that the mortgage was within the power to mortgage, conferred by the Act of March 26, 1869, the object stated in the mortgage not being, as he supposed, that contemplated by the Act; the holders of bonds, therefore, would take with notice of its invalidity, if it should be invalid. That, as no bonds had been issued, the company might issue new bonds and secure their payment by another mortgage which would be a first lien on the branch road, although the cost of construction may have been paid theretofore. He also gave his opinion that the trustees under the present mortgage could discharge it by a release, which should recite the doubtful validity of the present mortgage, that, in consequence, no bonds have been issued under it, and that another mortgage has been created for the special objects contemplated by the Act; and that the release and new mortgage should be executed simultaneously.] [10]

“ The trustees then addressed the following communication to the officers of the company:

[“ ‘ To the President and Directors of the Wilmington and Reading Railroad Co.:

“ ‘ The undersigned trustees, in a mortgage made to us by your company on Jan. 19, 1874, being advised that there are doubts as to the validity of that mortgage, as being in excess of the powers conferred by the Act of March 26, 1869, will enter satisfaction on the record of said mortgage upon your request, and upon the cancellation of the bonds set out in the said mortgage and designed to be secured thereby.

“ ‘ Edward Brooke,

“ ‘ Abraham Gibbons,

“ ‘ George Richardson.’

“‘May 12th, 1874.’

*544“ The board of directors, on the same day that this communication is dated, adopted the following minute:

“ ‘ Whereas, by virtue of an Act of Assembly of the Commonwealth of Pennsylvania, approved March 26, 1869, the president and directors of the company are authorized to borrow money on mortgage at a rate of interest not exceeding seven per cent, for the construction by the company of any branch or lateral railroad. And whereas this company has constructed a branch railroad from Birdsboro to Poplar Neck, on the farm of Ezra High, in Berks county, connecting with the main line at Birdsboro, aforesaid. And whereas that portion of the Berks County Railroad between the end of the above said branch railroad and Penn street, in the city of Reading, has been leased to this company for the term of nine hundred and ninety-nine years. And whereas this company, to carry out the provision of the aforesaid Act of Assembly, did, on Jan. 19, 1874, execute and deliver to Edw’d Brooke, Abraham Gibbons and Geo. Richardson, trustees, a mortgage of the aforesaid branch road and the aforesaid portion of the Berks County Railroad, leased to this company as aforesaid, to secure bonds to the aggregate amount of five hundred thousand dollars in the form and character and in the respective sums set forth in said mortgage, recorded on the said 19th day of January, 1874, in the office for recording of deeds in the County of Berks, Mortgage Book No. 30, page 95.

“ ‘And whereas the company has been advised that there are doubts whether the said mortgage is a valid execution of the powers conferred by the aforesaid Act of Assembly of March 26th, 1869, and that therefore the bonds mentioned in said mortgage would not be well secured thereby, and in consequence thereof none of the said bonds have been issued by this company, and the trustees in said mortgage have signified to the board that they are willing to release said mortgage and enter satisfaction on the record of the same, upon the cancellation of all the said bonds; therefore resolved :

“ ‘ 1. That, upon the execution by the said trustees of a release of the said mortgage, and upon their signifying in writing that they will enter satisfaction on the record of the said mortgage, the president of this company be authorized to borrow a sum of money not exceeding in the whole the sum of five hundred thousand dollars, for the purpose aforesaid, and issue bonds therefor in such form, registered or otherwise, and in such number and of such amounts not less than one hundred dollars, as he may think advisable, payable not later than thirty years from the date thereof, with interest at the rate of seven per cent, per annum, payable semi-annually on the first day of February and August of each year, first payment of interest to be made February 1st, 1874. The said semi-annual payment of interest to be by coupons attached to said bonds or otherwise, as the said president and directors may think expedient.

“ ‘ 2. That the president and directors of this company be au*545thorized and directed to execute in the name of the company and under the corporate seal thereof to Edward Brooke, of Berks county, Abraham Gibbons, of Chester county, both of the state of Pennsylvania, and George Richardson, of the County of New Castle, in the state of Delaware, as trustees, a mortgage of the above mentioned branch road and also of the above designated portion of the Berks County Railroad, leased to this company as aforesaid, to secure the payment of the above mentioned bonds with their interest, according to the tenor thereof. Resolved, that the price of the bonds named above, be fixed at not less than eighty per cent, of the par value, and that the officers be not allowed to dispose of theirs, except as heretofore provided for, at a less price.’] [11]

“On July 6, 1874, the trustees, in pursuance of the authority and direction of the company, and in the presence and with the assistance of the president and assistant secretary and treasurer, and of at least one of the directors of the company, destroyed the bonds referred to by burning them in the furnace of Pluston’s Rolling Mill, at Coatesville, where the office of the company was, and the following certificate was given to the company and entered upon their minutes:

[“ ‘To the President and Directors of the Wilmington and Reading Railroad Company:

“‘ We, the undersigned Trustees of a mortgage created by the Wilmington and Reading Railroad Company, on its Reading branch, amounting to $500,000, dated January 19th, A. D. 1874, upon which there were doubts of its validity, have this day, by the direction of the said company, cancelled and utterly destroyed all of the bonds that were 'printed and received from the lithographer, viz:

1, $100 bond.................................................Proof sheet.

1500, $100 bonds.................................................551 to 2150

400, $500 bonds...................................................151 to 550

150, $1000 bonds...................................................1 to 150

(Signed) “ ‘A. Gibbons,

“ ‘Geo. Richardson,

“ ‘ Trustees.

“ ‘ Robert Frazer, President.

“ ' W. S. Hitles, Secretary.’] [12]

“ The company then executed and placed on the said branch road a new mortgage to the same trustees as directed in the foregoing related minute of the company, dated July 6th, 1874, for $500,000, and issued bonds secured thereby to that amount.

“ On July 14, 1874, the trustees executed a release in discharge of the mortgage of Jan. 19, 1874, reciting the making of the mortgage, the doubts as to its validity, that no bonds had been issued thereunder, and then formally releasing and discharging the mortgage and the lien thereof. The release was recorded in the Recorder’s office of Berks county, on July 22, 1874. In this release, the *546mortgage is recited as recorded in Mortgage Book No 30, page 95. The mortgage is properly described and identified in the release, but is erroneously recited as recorded in Book No. 30, instead of No. 20, where it was actually recorded. It appears from the testimony that Mortgage Book No. 30 had not then been opened for use and was not until 1876. [It is evident, from inspection, that the figure 2 in the endorsement of record, on the mortgage, was, in preparing the release, mistaken, from the manner in which it was made, for a 3, and hence the error in the recital of the place of record.] [15]

“ The company having made default in the payment of the interest due on the first mortgage of $1,250,000 on the main line from Wilmington to Birdsboro, the circuit court of the United States for the eastern district of Pennsylvania, on June 6, 1876, made a decree directing the trustees in the mortgage to make sale of the mortgaged road. The trustees made return that, on Dec. 4, 1875, they had sold the road as directed, to M. Baird and others named in the return, which sale was confirmed by the court and a conveyance made to the purchaser. The purchaser, in the early part of 1877, in pursuance of the authority of the Act of Assembly in such cases provided, organized the Wilmington and Northern Railroad Company, extending from Wilmington to Birdsboro, and reported that fact to the Secretary of the Commonwealth.

“ The Wilmington & Reading Railroad Co. having also made default in the payment of the interest on the mortgage of $500,000 on the branch road leading from Birdsboro to Poplar Neck, and thence to Reading, being the mortgage already referred to, dated July 6, 1874, the circuit court of the United States, on Oct. 13, 1877, made a decree directing the trustees named in that mortgage to make sale of the mortgaged road. The trustees made return that, on Jan. 29, 1878, they had made sale to Edward S. Buckley, and others named in the return, and the sale was, on April 3, 1878, confirmed by the court. The branch road thus sold was subsequently conveyed to “ The Wilmington & Northern Railroad Co.,” for whom and with whose money it had been purchased, who then owned the line from Wilmington to Reading, formerly owned by the Wilmington & Reading Railroad Co.

“ Francis C. Hooton, the plaintiff in this case, is the holder of $100,200 of the bonds .of the Wilmington & Reading Railroad Co., secured by the second mortgage on the road from Wilmington to Birdsboro, and being a part of the bonds having thereon coupons numbered from seven to fourteen, both inclusive. Of these, $200 belong to him in his own right, the others were brought to him by clients for the purpose of bringing this suit, and are in his possession. The plaintiff asks that we command the Wilmington & Northern Railroad Co., by mandamus, to issue to him scrip as mentioned in the mortgage of Jan. 19, 1874, of the branch road, for the coupons seven to fourteen inclusive, as they appear upon the second mortgage-bonds of the Wilmington & Reading Railroad Co., held *547by him as aforesaid, said scrip amounting to $28,056, and with interest thereon from Oct. 1, 1875; and also that, immediately after the issuing of said scrip to him, we command the said Wilmington & Northern Railroad Co. to convert the same into the bonds secured by the said first branch mortgage of the Wilmington & Reading Railroad Co., of Jan. 19, 1874, with the proper coupons attached, and issue and deliver the said bonds, properly authenticated, to said plaintiff.

“ The defendant, in answer to the alternative mandamus, says that the Wilmington & Northern Railroad Co. is not liable to issue any scrip and bonds to the plaintiff, and has not issued any such scrip or bonds to him, because it is the owner of the railroad and franchises formerly owned by the Wilmington & Reading Railroad Co. by purchase at judicial sale, free and discharged from all liens and liability by reason of any mortgage or other incumbrance, and free and discharged from all liability to issue any scrip or bonds as claimed by the plaintiff, as will appear by reference to a release dated July 14, 1874, and duly recorded and by proceedings in equity in the Circuit Court of the United States for the sale of the said branch road. The defendant also pleads the statute of limitations. On this state of facts, the question is presented, whether the owner of the coupons referred to of the second mortgage bonds on the main line from Wilmington to Birdsboro, acquired any vested interest in the mortgage of January'19th, 1874, placed upon the branch road.

“ The Wilmington and Reading Railroad Co. had expended moneys in constructing the branch road, of which it was proper it should possess itself by reimbursement, or other proper remedy. It had aúthority to mortgage the branch road to pay for its construction, and might take, by way of reimbursement, of the moneys raised and secured by such mortgage, so much as it had expended in such construction. We do not regard the holder of the coupons in question, however, as having any vested interest in the bonds to be secured by the mortgage, until delivery was made to them by the company. The bonds secured by the mortgage belonged to the company; they had a right to use them or their value or proceeds, to the amount expended by them in constructing the branch road, for their own purpose, and they might redeem coupons of the second mortgage bonds of their main line therewith, or pay any other debt as they saw proper. By the recital in the mortgage, it appears that they intended to use the bonds, so far as needed, in payment of the bonds in question. This recital is evidence of their intention that the moneys used in constructing the branch should, when they were in condition to repay themselves, be appropriated to these particular coupons. We are of opinion, however, that this recital did not bind the company to thus use these moneys, or to transfer bonds which might represent them.

“ They recite in the mortgage that it has been deemed expedient by the directors to fund the coupons in question by the issue of *548scrip convertible into bonds secured by said mortgage on the branch road, but there is no evidence of any contract with the holders of the coupons which entitles them to demand as a right that the intended action of the company be carried out, and the mortgage itself is not such a contract, or evidence of it. The bonds to be secured by the mortgage in question remained in the control of the company, and none had been sold or parted with. [No scrip had been issued, so far as the evidence shows,] [26] or at least as appears by the petition of the plaintiff for a mandamus and the evidence in the case. As no scrip was ever issued to him, or the owners of the bonds represented by him and embraced in this suit, the plaintiff asks that scrip be issued to him for the coupons in question, and that, upon such scrip being issued, the company convert said scrip into bonds.

“ Under the circumstances, we are of opinion that the company had complete control of the bonds intended to be secured by the mortgage, and could authorize and direct their cancellation and destruction and the release of the mortgage.

“ In this view, it makes no difference that, in drawing the release, an error was made in reciting the book in which the mortgage was recorded. If the company was under no obligation to issue the scrip or bonds to the holders of the coupons in question, and the plaintiff, as we find, had no vested interest, then, so far as he is concerned, it makes no difference whether there was an error in the release in the recital of the place of record of the mortgage, or whether the mortgage was released at all. It might be desirable to the new company to have it removed as a blur in the title, but the plaintiff has no concern in the matter. No one can complain of any action of the company in relation to the mortgage but those having an interest therein. We think, however, that the error was one of no consequence, the release is in every other respect full and perfect and discharges the mortgage. The Mortgage Book No. 30 had no existence when the record of the mortgage was made, and this error of reference to Book 30, instead of Book 20, does not invalidate the release.

“ The view we have taken renders it unnecessary to consider whether the mortgage of Jan. 19, 1874, was invalid by reason of the objects stated in it not being those contemplated by the Act of Assembly authorizing a mortgage to pay for the construction of the branch road, and whether the defendants — the Wilmington & Northern Railroad Co. — can in any event be held responsible for the payment of the coupons in question.

“We direct that judgment be entered for the defendant, unless exceptions are filed within thirty days, as provided by the Act of Assembly of April 22, 1874.

“ The plaintiff presents the following points:

“ ‘ 2. The return of the defendant in this case is a plea in confession and avoidance, admitting everything set out by the plaintiff, but alleging that the defendant shall not be compelled to issue the *549scrip and bonds demanded, for these two reasons only: 1st. Because the trustees released a mortgage recorded in Mortgage Book No. 30, page 95. 2nd. Because the circuit court of the United States decreed that the mortgage of July 6, 1874, under which the defendant became the purchaser of the branch road, was a first lien upon the road. [5]

*“*‘3. Under a return setting forth the release of a mortgage in Mortgage Book No. 30, evidence is inadmissible as to the release of a mortgage in Mortgage Book No. 20. [18]

“ ‘ 4. The trustees who accepted the trust under the mortgage recorded in Mortgage Book No. 20, page 95, had no power to release, or otherwise discharge, the trust until the bonds were paid. [19]

“‘5. The recording of the mortgage of Jan. 19, 1874, in Mortgage Book No. 20, page 95, was notice to all the world of the creation of the trust for the benefit of certain coupon holders, and of the acceptance of the trust by the trustees. [20]

“ ‘ 6. The release of a mortgage alleged to have been recorded in Mortgage Book No. 30, would not be notice to the cestui que trust under the mortgage in Mortgage Book No. 20. [21]

*“‘7.*The purchasers of bonds under the mortgage dated July 6,1874, took them with notice that the mortgage recorded in Mortgage Book No. 20, page 95, remained unsatisfied of record. [22]

“ ‘ 8. The Wilmington & Northern Railroad Co. purchased the branch road, subject to the lien of the mortgage recorded in Berks county, in Mortgage Book No. 20, page 95.’ [23]

“ ‘ 10. Under all the evidence in this case, the judgment of the court should be in favor of the plaintiff.’ [24]

“‘13. The bonds delivered to the trustees under the mortgage of Jan. 19, 1874, became the property of those who were by the mortgage declared the cestui que trusts, the moment the trustees accepted the trust.’

“ These points, in addition to what we have already said bearing thereon, we answer as follows : . . . The 2d and 3d points have reference to the return of the defendant. [We are of opinion that the return fairly raises the questions upon which we have considered the case.] [18]

The 4th, 5th, 6th, 7th, 8th and 10th points are disaffirmed. . . . [The 13th point is disaffirmed. We may say, in further answer to this point, that none of the bonds, under the mortgage of Jan. 19, 1874, were ever set apart or separated from the whole number or amount, for the payment of the holders of the coupons referred to, or otherwise, but all remained and were kept together until destroyed.”] [25]

The plaintiff filed numerous exceptions to the findings of. facts and conclusions of law by the court below, which the court overruled, but the only ones specifically assigned for error were the following:

*5502. In place of finding as in brackets 26, the court should have found that the petition for a mandamus alleged that scrip for the conversioq of the coupons into bonds were issued, quoting them by tenor and effect, and the defendant has not denied the issue of the scrip.

“ 8. His Honor erred in not finding as a fact [that there was no evidence that the bonds of the mortgage of July 6, 1874, under which the branch road was sold, were issued for the purpose of funding the coupons mentioned in the mortgage of Jan. 19, 1874.”] [28]

Judgment was entered for defendant, whereupon plaintiff took this writ.

*The assignments of error*specified the action of the court, 1, in not sustaining the demurrer, quoting it as above; 2, in not entering judgment forplaintiff, in the nature of a judgment non obstante veredicto; 3, in not entering judgment for the plaintiff upon the whole record; 4, in not directing a peremptory mandamus to issue; in not deciding that the return did not, 6, set forth any clerical error in any part of the release, made a part of the return; or, 7, allege that the mortgage in Mortgage Book No. 20, had been released, but did allege that a mortgage in Mortgage Book No. 30, had been released ; in not deciding, 8, that the return alleged the creation of a mortgage in Mortgage Book No. 30; or, 9, as contained in defendant’s traverse, quoting it substantially, as above; in admitting in evidence, 10, the letter of counsel as contained in the opinion of the court below, quoting it, but not the bill of exceptions; 1 r, 12, the minutes as given in the opinion of the court below, quoting them but not the bills of exceptions; 13, the release of a mortgage in book 30 as evidence of the release of the mortgage in book 20; 14, in not finding that the release was to be treated, by agreement, as if a part of defendant’s return; 15, in finding as in brackets, quoting it; 16, in not finding that the minutes, set forth in assignment of error 11, directed the satisfaction of .a mortgage in Mortgage Book No. 30; 17, in not finding that the trustees in the mortgage recorded in Mortgage Book No. 20, page 95, had not power to release the said mortgage; 5, 18-24, in not affirming the points, quoting them as above; 25, in the answer to point 13, quoting the answer but not the point; 26, in not sustaining plaintiff’s 2nd exception, quoting the finding of the court below as in brackets, but not quoting the exception; 27 and 29, numerous exceptions to findings of fact and law, covered by the foregoing assignments of error, without quoting the exceptions or indicating them otherwise than by number; 28, in not sustaining the 8th exception, quoting it as indicated by brackets ; 30-33, in admitting the evidence, quoting the bills of exceptions and the evidence, as above; 34 and 35, exceptions to reception in evidence of minute book and release referred to in the nth and 13th assignments of error, indicating the exceptions and evidence in this way; 36, in admitting in evidence, as proof of the satisfaction of the mortgage in Mortgage Book No. 20, page 95, the certificate of the *551release which recites the mortgage as in Mortgage Book No. 30, page 95, quoting the certificate but not the bill of exceptions; 37, in admitting the evidence’ of F. C. Hooton, quoting the evidence but not the bill of exceptions; 38, “ exceptions to testimony of F. C. Hooton, same as 37th assignment of error,” indicating it in this way.

*Francis C. Hooton,*for plaintiff in error.

Such of the material suggestions and allegations of the writ which are not denied or traversed by the return, are, in contemplation of law, admitted by the defendant to be true: Tapping, Mandamus, §349; Phoenix Iron Co. *v.*Com., 113 Pa. 563. The Acts of April 20,1864, P. L. 525, March 16, *1866,*P. L. 209, March 24, 1865, P. L. 49, regulated the organization of the companies afterwards consolidated. The Act of Feb. 14, 1868, P. L. 40, entitled a supplement to the Act March 13, 1847, provided that any company heretofore incorporated and organized under and subject to the Act of Feb. 19, 1849, regulating railroad companies, should be subject to the provisions of the Act of March 13, 1847, except that the governor alone should make the appointments. The defendant, was reorganized under the Act of April 8, 1861, P. L. 259. That Act provided that roads sold under process could form a new corporation, and that the new corporation should be subject to all the restrictions imposed upon the old corporation by any Act or Acts in force at the time of the sale, of which the Act of 1847 was one. The Act of 1861 gave no power to elect a president from without the state. The petition fora mandamus and the writ set forth that the president of the Wilmington & Northern Railroad Co. is not a resident or citizen of this state, and this the return does not deny. It therefore appears that the return was made by one claiming to fill an office by election, directed by the law to be treated as null and void. The return must be made by those legally competent to make it: Tapping, Mandamus, § 341.

Judgment non obstante veredicto may be obtained as in personal actions: Tapping, § 397. Those facts of a return or other pleading, not traversed or otherwise pleaded to, are admitted: Tapping, § 386. The traverse states that the plaintiff’s trustees did not execute a release of the mortgage recorded in Mortgage Book No. 20, page 95, but that they did execute a release purporting to be a releasé of a mortgage in Mortgage Book No. 30, page 95. To this the defendant made no reply. To make it appear by the release of the mortgage in No. 30, that the mortgage in No. 20 was discharged, it was the duty of the defendant to spread the mortgage in No. 20 upon the record in its return, that the court might judge of its sufficiency, and the plaintiff be apprised of the language of this mortgage to prepare its defence to it: Tapping, § 352. Without this it could not appear by the release that it did discharge the plaintiff’s mortgage. The record, therefore, shows the defendant has, by not replying, admitted the plaintiff's whole claim, and judgment should be entered therefor.

*552Defendant confesses the plaintiff’s facts by not denying them, and seeks to avoid the effect of his confession by suggestion of subsequent matters of avoidance: 1 Chit. PL § 497; Com. *v.*Allegheny Co. Com’rs, 37 Pa. 277.

As the pleadings do not allege any clerical error, proof of it cannot be admitted.

In the plaintiff’s mortgage, the acknowledgment of the trustees, as evidence of their acceptance of the trust, is set forth, with their properly attested signatures attached, and the delivery of the bonds by the railroad to the trustees for the purposes of the trust averred. It was an accepted trust. The bonds were delivered to the trustees to be delivered to the holders of the coupons of the second mortgage of the main line. The mortgage was made for the same purpose. The trustees could not revoke this trust: 1 Perry, Trusts, § § 268, 271; lb. § 602, M ; Adams, Equity, § § 38, 40; Bispham, Equity, § 137- '

The recording of a mortgage is constructive notice to all the world : Evans *v.*Jones, 1 Yates, 173. And supersedes the necessity of express personal notice: Leving *v.*Will, 1 Dallas, 430. The

release of a mortgage in No. 30, was not notice of the release of a mortgage in No. 20. The purchaser of bonds under the mortgage of July 6, 1874, took them with notice that the mortgage in No. 20, page 95, remained unsatisfied of record.

*Wm. M. Hayes,*with him *John S. Gerhard,*for defendant in error.

There is nothing in the Act of 1865 requiring such consolidated company to have a majority of the directors as residents of this state, nor that the election of directors shall be held therein, nor that the president should reside therein, nor that the principal office shall be therein. All. of this has been avoided with care.

Parol evidence of what passed at the time of the execution of a deed, or, as it is sometimes expressed, at or before the execution, is admissible. Another circumstance which justifies the admission of parol evidence is a mistake in the creation of the • instrument itself; a mistake of the scrivener : Cozens *v.*Stevenson, 5 S. & R. 425. It is only when a chancellor would reform the instrument that parol evidence is admissible to contradict. It is true, under our practice in Pennsylvania, it is accomplished through common law practice: Phillips *v.*Meilly, 15 W. N. C. 226.

The court found the facts in favor of the defendants and this court will not inquire into such findings: City *v.*Linnard, 97 Pa. 242; Brown *v.*Dempsey, 95 Pa. 243.

The statute of limitations is a bar to this action: Yorks’s Ap., 110 Pa. 69.

Plaintiff is demanding the recission of a contract made over thirteen years before the petition was filed. One of the first duties of a party who seeks equitable relief is promptness: Andriessen’s Ap., 123 Pa. 303

Plaintiff having failed to establish a special legal right against *553the Wilmington & Northern Railroad Co., has no right to a mandamus: Com. *v.*Rosseter, 2 Binn. 360; James *v.*Bucks Co., 13 Pa. 75 ; Com. *v.*Clark, 6 Phila. 498.

Feb 25, 1889.

The trustees under the mortgage dated Jan. 19, 1874, acted in good faith and under the advice of counsel. They would not be personally liable: Bradley’s Ap., 89 Pa. 514. They had full power, and it was their duty to destroy the bonds and release or satisfy the mortgage, and not to allow the bonds to be issued, which would have been invalid.

Parol testimony to explain the mistake of the scrivener, which occurred directly before the execution of the instrument, was properly received.

As the road is now in the hands of a bona fide purchaser who purchased in good faith from the vendees at a judicial sale, if any secret equity or vested interest ever did exist, it cannot be successfully raised after slumbering for over thirteen years.

Per Curiam,

This is a long, dreary and uninteresting record. Were we to go over it in detail, it would involve-an opinion as long, dreary and uninteresting as the record itself. Moreover, no lawyer would ever read it unless beguiled into doing so by something amounting almost to a false pretence, and, in such case, would be likely to rise from its perusal with a feeling that his time had been wasted. We shall content ourselves with one or two general remarks.

It is immaterial that, in drawing the release of the mortgage recorded in Mortgage Book No. 20, it was erroneously described as having been recorded in book No. 30. This was a palpable mistake of the scrivener. There was at that time no mortgage book No. 30, and the mortgage itself was sufficiently described to leave no room for doubt as to what mortgage was released. Aside from this, the plaintiff in error has no standing to raise such a question. It was a good release as to him, and it is a matter with which he has no concern.

There was no contract between the holders of the coupons and the company by which the latter were required to issue scrip therefor. There was an intention to do so, nothing more. This intention was never carried out; the mortgage itself is not evidence of such a contract; the bonds issued under the mortgage were never parted with, and the company had the absolute control over them. Hence, when said bonds were destroyed and the mortgage released, there was an end of it. We do not think, therefore, that'the owners of the coupons referred to, of the second mortgage bonds on the main line from Wilmington to Birdsboro, acquired any vested interest in the mortgage of Jan. 19, 1874, placed upon the branch roads.

Judgment affirmed.