Western Reserve chronicle. [volume] (Warren, Ohio) 1855-1921, 1871-04-12
The Atlantic and Great WesternLiti-
gatIOn...DeeisIOn Of Judge Rornfnn.


gatiOn.--DeeisiOn Of Judge BOyuton.
In the Common Pleas OF Summit Co,
o., on the 3lst ult., in the cases Of John
X Penn vs.. the Atlantic and Great
western Railway Company ct al, and
Nathaniel a. Prentiss vs.. the same
Judge BDyntOn d liVered the opinion Of
the Court, which is in substance as fol-
lows:
This is an action brought by John r.
Penn, a second mortgage, 70 ~fOreclose q
mortgage aga INST the Atlantic and Great
estern Railway Comp my, and Is to be
treated precisely like u other case of
foreclosure, and rel ef is to be granted
under the usual rules applicable in such
cases. Although the case has been much
protracted and numerous questions have
arisen sun II Is now necessary to pass
upon hut two points.
First. Should a sale of the Atlantic
and Great Western Railroad be ordered
In this proceeding, to ~foreclnse a second
mortgage, subject to tho incumbranee OF
the unpaid principal OF the first mort
gage2
Second. The Mahoning RaiIroad he
ing leased subsequently 70 the sxecn-
uon OF the mortgage, can this lease be
sald 10 DO "aiter acquired" property in
sucn a sense as to be included in the
- AAAN VI AAA2 AAAHN NAALH 7
Taking up this second question first
there is no statute in our state whereby
one railway Is empowered e. lease an
other; nor is such power found in the
charter Of the Atlantic and Great West
ern Railway Company. But suppOs
that the Atlantic and Great Western
Railway could lease the Mahoning Rail
red, would the terms Of the mortgage
include such lease? 1t certainly would
not expressly, nor can expression be
found which by implication can be ex-
tended so ar. Il is true that the words
Of the mortgage are very broad. But
future acquired property, TO be included
in and Intended by those words, must
be such property as is appurteuant TO.
OF is an ~aecretion by addition or growth
to the property In the possession OF the
m~ortgager at the time OF the execution
Of the mOrtgag-. The illustration is that
you may mortgage the wool TO grow
on sheep you may purchase In the fu-
ture. The reason Is that the wool to
grow on sheep you now have is future
acquired" property. which is not rue OF
wool TO grow On sheep yet 10 be pur-
chased. The lease Of the Mahoning road
not having been made at the tim Of the
mortgage, the income OF that road can
not be said to be future acquired prop
EAAN III 1AkA q ~ - ~ 0NAAk II hAAlAAAA
the terms OF she mortgage. It would
seem that If the Atlantic and Great
Western Railway Company bad inter
coded 70 include this lease in the lien Of
the mortgage, il would have done so in
the deed OF further assurance, made sub
sequent to the execution Of the lease ;
but this is done neither in the mortgage
o in the deed Of assurance. There
fore, neither the first nor the second
mortgages a claim the Mahoning lease
to be within the lien Of their mortgages.
Second. The interest now due on the
first mortgage binds, is 81, 394,96S.3O; on
the second mortgage bonds, Sl,O93, 349.3
and on the consolidated bonds the inter
est is over S7,OOO,OOO. The holders OF
the second mortgage bonds now ask that
Atlantic and Great Western Railroad be
sold, subject to the lien Of the unpaid
principal Of the first mortgage bonds,
and hat thew be allowed to pay the
interest due on the first mortgage bonds.
The first mortgage has the undoubted
right 10 have every cent due him paid.
But it is equally true that second mort
gage, or any more remote incumbrance
can come in and pay OF amounts due on
prior liens and be ~subrOgated to the
rights OF those prior lien holders, Just
in the same manner as the mortgager
N4Aa 1AA1 nus RAGH0NA ~ odAG VI NAG
road. That is, by paying the interest
dun on the first mortgage bonds, which
is Sl,3S4, 96S.S0, the holders OF the second
mortgage can prevent the sale, unless
the principal of the first mortgage bonds
has become due on account Of the de-
fault in the payment of the interest,"
This must, OF course, be determined by
the words OF the mortgage. But moth
ing an be found in It's terms which
authorizes that default in paying inter
est will u the bonds to become due
and payable.
1t is necessary to consider here the
meaning OF the words "mOrtgaged
premises" Here the Court confessed to
having some doubt, but had consulted
with Judges FoOte and Paine and had
reached q conclusion. The statute pro-
vides that in cases Of foreclosure of
mortgages the sale Of the mortgaged
premises must in all cases be ordered.
Does the expression mOrtgaged prem
ises'' mean simply the land, or all inter-
est in the land, whether legal or equi-
tablet The latter is the case, and the
thing need not be sold in every instance.
The statute probably intended to DO
away with strict foreclosure, {. G., that
the premises must not on failure to
redeem become the property Of the
mortgage, and must be considered
only as opposing and taken into con
tradiction 70 that system of strict fore
closure. The statute, therefore, allows
real estate or certain interests therein 10
be sold subject to lien or other eneum-
brances. And in this case the second
mortgage bonds can be ~subrogated to all
the rights OF the holders OF the first
mortgage to the extent Of the lien of the
amount they have paid, but must hold
subject to the lien Of the unpaid and
unmatured principal Of the first mort
gage bonds, and a decree was ordered
TO be taken to this effect, but it has not