Dodgeville chronicle. [volume] (Dodgeville, Wis.) 1862-current, 1868-09-18
CONCLUDED.

the law, | should not hesitate In asserting
to the proposition that the withdrawal by
the company of the bonds issued under it,
would not only extnguish the mortgage,
but the authority to create a second pre-
ferred mortgage would be likewise extin-
guished The Legislature granted the au
thority to create but one mortgage para
mount to that of JANSEN After that
mortgage was discharged and cancelled,
no difference how, the owners of the bonds
secured by the Jansen mortgage were en-
titled to protection against any other pre-
ferred mortgage. Purchasers believing
that the Schuyler mortgage was really the
preferred mortgage, and knowing it was
discharged in some way, would now give
higher price for the Jansen mortgage
bonds. They would not be compelled to
examine how or by whom the Schuyler
mortgage was cancelled. They could
know nothing about the substitution of
the Conan & Martin mortgage for that of
Schuyler; for the former mortgage does
not refer to the Schuyler mortgage at all,
and they could know nothing of the rea-
sons or means used by the company in
discharging the Schuyler mortgage. At
least they will be presumed to be ignorant
of these motives and means until the con-
trary appears. And if the Schuyler
mortgage was the paramount mortgage
when it was given, the execution of no
subsequent one, though it professed to be
executed in pursuance of the legislative
power, could affect its priority. And I
think that this mortgage would cease to
be an escrow, and would become a valid
and effective instrument so far as the JAMS
sen mortgage bondholders were concerned,
as soon as it was recorded, and bonds de-
livered ny the company to the trustee,
Schuyler, secured by that mortgage The
theory of the plaintiff complaint is, that
the Jansen mortgage is paramount to the
Conan & Martin, because the latter was
not {" the first mortgage but that the
Schuyler mortgage was the paramount in
strument executed in conformity with the
legislative power and this mortgage be-
ing satisfied, the superiority, as between
the Jansen and the Conan & Martin
mortgage, will depend upon their respect
i've dates-and the former, being the older,
must prevail in point of right. think
that the Jansen mortgage has the prefer
ence, but for quite different reason than
that urged by the counsel for the plaintiff
think that the legislative power to Gre
ate preferred mortgage has not yet been
exerted in the execution of either of the
instruments for which this preference is
claimed. Holding, as do, that railroad
company cannot mortgage or sell its.cor-
porate property or franchises without
legislative act, if there was no act but that
Of March 23d, 1853, enabling the Mineral
Point railroad company to mortgage, it
would be clear to me that the Schuyler
mortgage was the paramount instrument,
for that act only two mortgages, and if the
Schuyler mortgage was valid for any pur-
pose, Qhe Jansen mortgage being one of
the authorized mortgages the Conan &
Martin mortgage would be void. But by
an amendment TO the company's charter,
approved March 7th, 1853, Ga few days
previous to the passage of the two-mort-
gage act so often referred to- a general
power was given to the company to mort
gage its property. And no lawyer can
tell from the face of the Schuyler or Co.
man & Martin mortgage, (and | have
shown that nothing outside the mortgages
themselves can determine the point,)
whether they are executed under the gen
eral power to mortgage, or under the spe-
cial power to create paramount mort
gage, unless he adopts an artificial rule of
Interpretation laid down in the books.
Chancellor Kent says 1.-The general rule
of construction, both as to deeds and wills,
is, if there be an interest and power eX-
listing together in the same person over
the same subject, and an act be done with
out particular reference to the power, it
Will be applied to the interest and not to
the power Ii there be any legal interest
on which the deed can attach, it will not
execute power. If an act will work two
ways, the one by an interest and the other
by power, and the act be indifferent, the
law will attribute it to the interest and
not to the authority. A general DISPOSE
ton by willswill not include property over
which the party had only power, unless
the intention could be inferred to execute
the power. If will be made without ref
erence to the power, it operates as an APP
polntment under the power, provided the
will would be imperative without the
power. If the words of. the will may be
satisfied without supposing an intention
to execute the power, then, unless the
intent to execute the power be clearly ex-
pressed, there is no execution Of it."1-4
Kent, PIP. S35 and 1876. r.a
The value and reasonableness of this
. rule of Interpretation will be immediately
seen in comparing the Conan & Martin
and the Schuyler mortgages with the pow
err granted by the law. Neither of them
pretend or purport on the face to be the
paramount mortgage under the power. 1t
is true that the sum for which the Conan
& Martin mortgage was given does not ex-
coed the statutory limit, and the MOI tgage
in describing the premises gives the length
Of the road but Schuyler bondholder at
the time that mortgage was given, had no
means of knowing but that the road was
80 miles long, unless he visited the road
and made personal examination. Sup
pose two mortgages, containing the identi-
cal language with that of Conan & Martin,
had been executed, but to different trus-
tees, on the same day,-which of them
would be the one authorized by the special
power. and which by the general power 2
That the company did not execute anoth-
er mortgage after the Conan & Martin for
the exact sum, 100000, does not show an
intent of the company that that mortgage
should be the paramount one under the
power. How long should the Conan &
Martin bondholders wait to ascertain
whether or not the company would issue a
competing mortgage That the Conan &
Martin mortgage reaches the maximum