Dodgeville chronicle. [volume] (Dodgeville, Wis.) 1862-current, 1868-09-11


j think it sufficiently clear that bonds Of
the latter character alone are entitled to the
security of the Jansen mortgage, if the
ordinary rules of language are to control
the question. Legislators, however, do
not always use the aptest Kings English
to express their intention. But if we look
at the objects and purposes of the act, we
shall be led to the same conclusion. 1t
was supposed that the bonds of Iowa coun-
ty were more marketable than those of the
railroad; otherwise the company would
have no motive in making the exchange.
The whole scope of the special act of March
Esd, 1858, would be purposeless, if we
supposed its second section authorized the
issue of two ordinary mortgages, one of
which should be superior to the other.
This the company could do at any time
under its general power. | think that the
act, provided the company and county ef-
fected the reciprocal exchange Of bonds
contemplated by it, constituted contract
Between the county and company, that the
municipal corporations aiding the company
with their bonds should have the full ex-
elusive protection of the second mort
gage" If other corporations than Iowa
county chose to run the hazard of lending
their municipal bonds to the company in
exchange, Iowa county would be compelled
to share its security with them. In order
to induce the interested municipal corpo-
rations to loan their credit, the special act
before alluded to, soemnly pledged to them
the security of the entire railroad, less
" first mortgage of an equal amount
And looking outside of the language OF the
act itself, as well as interpreting its Ian
guage, 7 am led to the conclusion, thai no
security is afforded by the Jansen mort
gage to the holders of the 'Kuehn bonds"
they not purporting on their face to have
been received by any municipal corpora
ton in exchange for its bonds. The hold
ers of these bonds, therefore, having no
interest in the Jansen mortgage, are not
necessary parties plaintiffs in an action for
its foreclosure. AS matter of fact the
"Kuehn bondsn were issued by the COM
pany and disposed of to private parties.
Again it is urged as fatal objection to
this action, that the Mineral Point Railroad
Company was ever insolvent = that it
ceased to exist as corporation in Novem-
Der, 1861, except for the purposes of suing
and being sued, and that in November,
1864, it ceased to have corporate exist
ence for any purpose whatever. From the
facts offered in evidence it appears that
the last meeting held by the directors Of
the company was. held on the 9Th of Oc-
tober, 1861. No election took place since.
In November, 1861, a sale took place of
the entire road under the Conan & Mar
tin foreclosure in the United States District
Court, and whatever rights Of property
were secured by that mortgage passed to
the new organization, "Thc Mineral Point
Railroad" co defendant in this suit. q
do not think it necessary for me to decide
| whether the former company is now mex
istencc, or whether it is represented by
any officers on whom service could be
made. The Mineral Point Railroad Com.
pany was Invested of all right, title, or in
terest in the railroad by virtue of the fore
| closure proceedings Of Conan & Martin.
| Both parties not only admit but aver this
| to be the case.
If the Jansen mortgage was entitled to
priority, being prior in date, all that the
company had in the property mortgaged
was an equity of redemption. The fore
closure of subordinate mortgage, as
| would be that Of Conan & Martin on this
hypothesis, would take away from the old
organization even the equity of redemp-,
ton, and leave it without any right what
ever to the property, and so the company
need not be a party to the present action.
| 1t is well known rule that if mortgagor
is Invested in any way of all his interest
| in the mortgaged premises, (and the de-
PENDANTS claim that such is the case with
the old csmpany in reference to the rail.
road it formerly owned, ~ that he need not
be party to the foreclosure Of the mort
gage, unless the mortgage chooses to
make him so. IF he is made a party, it
is matter of indifference whether he is
served with process or not. If he is not
made party it is that the mortgage cam
not have judgment against him for any
deficiency, if IA sale of the mortgaged prem
Uses will not satisfy the debt. Rlf-A
If the Conan & Martin mortgage was
actually paramount to that Of Janssen's,
it is matter of indifference to all parties.
whether the old company exists or not,
it would at once be fatal to the present ac-
ton. e"
This case will therefore be treated as if
the complaint were amended 10y striking
out the defendant, the Mineral Point Rail
road Company. The present company has
absorbed all the1rights of the original cor
poration, as well as those of Conan & Mar
tin. 81 5li7'l i4 (" 53i1
Thus far it appears that if Iowa county
has any right of action at all, it may sue
alone, and that the new organisation the
inheritor, successor and owner of all the
rights ard interests Of the original compa-
ny, is the only necessary defendant
parties agreeing that if the Schuyler mort
gage ever had any legal existence it is
now extinguished.1 adt $50 bua
N The question next to be considered is,
has Iowa county any rights at all? This
resolves itself into two other inquiries,
viz: Is the Jansen mortgage paramount
to the Martin & Conan mortgage? If it,
be not so, it will not be necessary to as
certain from the foreclosure decree in, the
United States District Court, whether the
rights of the county have been adjudicated
upon or, not. Both parties agree that the
Conan & Martin mortgage itself, if para
mount to the Jansen, is an effectual bar
to this action, whether it has been fore 4
closed or not. The plaintiff claims that
its mortgage ranks the Conan & Martin. 1
IF not so, its remedy, if any, would be to
discharge, redeem, and lift the preferred
mortgage of Conan 4 Martin, which would
be equivalent to lifting the entire railroad,
feat far too difficult for its financial mus
cles to perform. In fact, if the Jansen
l., r.. AZ