Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1876-01-04

of January, 1870, Was executed the mortgage 10
these u.tees, Omplaina6t, by the defendant
company, being the fifth 10 point of priority OF
time, to secure the payment ofthe Sl5,OOO OOo
bonds cow in suit. Aud that subsequently to
this the said defendant executed another mort
gage to Philo G. Calhoun and William X.
Kitchen OF all the property mentioned IN the
last preceding mortgage, and embracing, also,
all that portion of the line OF the road ex
tending from RichmoDd down the peninsula
of the York aud James river, and the branch
railroad from Scary creek, in West Virginia,
T., the mouth of the kauawha, and the bridge
to be erected over The OAlo at huntington.
Orts0, CO mort gagee 10 the f)urth mortgage
with these complainant trustees, Is cltlz 10 or
New York, and, so far as this suit IS concerned
has au interest adverse to them. And Ktch-
en-, who is q CO. mort agagee With the complain
ant Calhoun 10 the mortgage OF the lst Octo-
Der, 1872, is likewise citizen Of New York,
aud being subsequent. mortgage, holds au
interest adverse to lis co-trustcc, Calhoun, IN
this suit.
Under these circumstances the Chesapeake
and Ohio Railroad Company, tue defendant
COMPANY, moves to dismiss the suit for want OF
Jurisdiction, because Kitchen and Orion, who
are partl, defendant 10 the bill, are citizens OF
the same State with the cOmplanautS
So far as this motion IS concerned, IT 1t were
resisted Oh tue part of tue trustees, we should
have little diticu ty 10 dlsposlng oft Kitchen,
though proper, is not al Indispensable, party
10 the suit, aud fit appeared To the court that
It would be advantageous to the lntercs. OF the
buudhoiders in this suit to proceed Without him,
| he being a subsequent mortgage, the court
might, BY the exercise OF the ordinary poW:rs
of courts OF equity having control OF sultors,
dismiss the bhl as to him and proceed, and II
the trustees who are here c1mpialnaut, thought
1t best for the interest OF of their ccstul gu.
trusts to sell their mortgag. debt, they might
ask the court 10 strike out Ortons name also,
aud pr, c,cd to dispose Of their bare interest IN
the road as MORTGAGES.
So soon, however, as the trustees IN this
suit were allowed by the complainant bond
holders who first invoked the aid o! the court
to become complaiuauts here, they became
charged with the conduct Of the cause. The
only stanuOg the original compaluants bad 10
court arose from the allegation III their bill
that the trust ,es ID their mortgage were dere-
| lict. Wheu the trustees cauc Into court, de-
MED the charge of untalthtuuesS, aud asked 10
do what the compartments alleged they ought
to do, but were unwilling TO DO, aud the COM
plaiuants consented that they should become
compartments instead OF defendants, IN order
that they might proceed, they became masters
| OF the suit.
And uow come these trustees also, and ask
the court that the bill may DC dismissed, aod
that they may be allowed to proceed 10 the
courts of the State 10 which they have already
commenced proceedings, where, as they aliegc,
certain difficulties 10 regard TO jurisdiction
which arise here will not be 10 the way OF their
proceedings. They aege that whether the
court has Jurisdiction or not, as the defendants
say il has not, 10 sell the interest they hold III
| the railroad by virtue of their mortgage, 1t
would be very unWlse to do 80. That 10 their
Judgment all the prior as we'll as subsequent
lncumurancers should be made parties t. the
proceedings iu order to realize the full value
Of the mortgagcd premises. But they aege
tnia cannot be done ia this court because Dr.
ton, who is trustee uuicr the fourth mortgage,
is citizen of New York with them, and be-
cause KIT hen, tlu,;ee uod1r u subsequent
mortgage, is likewise citizen OF New Ork.
Aud they file here the record OF taclr proceed
Jugs 10 ioreclosc in the State court aud ask
that they may be allowed to proceed 10 that
| forum aud not 10 this.
And all the boudhoders under complain
ants mortg gage either agree with them or ac-
qulescc in their request, with the exception o.
few who hold bOuds to the amount OF about
$500, U0U.
Under these circumstances for the court to
determine that the trustees shall proceed here
and not elsewhere, there being no charge OF
dupIicity or fraud on their part, would be 10
Sc; up the opinion OF the court as 10 what the
best interests oil these cestui que trusts are
against those Of themselves and OF the trustees
who are legally charged with the care OF those
interests.
But we thiok it is plaio, from the papers ex-
hibiGed here, that it would not be proper to
proceed in this cause without making some, at
least, of the prior and subsequent mortgages
parties.
The mortgage to Duncan, Calhoun, and Or
too, of the lst October, 1868, 10 SECURE SlU,-
900 600, is still outstanding, and embraces all
the property OF the G. & o. r. Il but what
| is the actual Indebtedness Hereunder Is not
known and cannot be ascertaiued except by d
legal proceeding.
How could purchaser at a sale de-
creed by US torccosing this mortgage as
certain before bidding what the value Of tn
property to he sold was wheu there might
be au ipcumbrance on it OF $4,000, 900,
or, as is claimed, Of not more than So
OOO. Noud it lie for The Interest OF these
con- claimants to sell unless they had first pu,
themselves in position to Inform purchasers
what was the actual amount of prior iucum-
brances on the railroad? This cannot be done
without making Orion u party to the suit aud
the objection to that here is that he is clti
zen of the same state with the complaiuantr
1t is urged, however, that Calhoun and Duu-
can are co.trusteeS with Orton, aud that the
court having them already before it need t
require the third trustee to be party. But
these co trustees OBJ ct to represent both CLASSES
of cestui que trusts because their interests ART
adverse, and urge that O.ton is the only trus
tee who is charged solely with the interests Of
those claiming uucr the ten million mortgage
1t would not be proper for the court to de
prive those mortgages of their sole, peculiar,
personal representatives.
But the cumplaioauls claim that it is ueces-
sary also TO make Kitchen, who is trustee un-
der subsequent mortgage, party. for the
reason that while that mortgage is subsequent
to that of complainauts, on the part OF the
Chesapeake and OnIn Railroad, extending from
Richmond to the Ohio river. it Is claimed to
| &