Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-09
under our practice in the nature Of ejectment to OBJ

toln PoDeeeelon OF 1t IL withheld.
We have next to look It the mortgage trust deed
1or me purpose Of ascertanng whether the company
mas svaated itself Of the power thus conferred The
nn1n aIucle OF the mortgage trust deed Is q fo-
payment OF any interest on any Of the aforesaid
bonds secured by this instrument, issued or to be
Issued according to the terror Of the coupons thereto
the party OF the first part and If such default shan
continue Tor the period Of six months, it shall be
ior the said trustees the survivors OF sur
vAVor OF tnem OF their his successors personally,
OF by his or their attorneys or agents
70 enter into and upon all and singular the premises
nerepy conveyed OF intended SO to be- and each and
every part thereof and to have, hold and use the
same, operating by their or his superintendent,
managers receivers servants other attorneys or
aeents OF the said railway and conducting the bust
Aess tneIeOI and making from time to time All re-
pairs and requirements, and such useful alterations,
ADDITIONS and improvements thereto may seem to
them or MIN to be judicious, and to collect and re-
ce1ve all tolls, freghts, incomes, rents, issues and
profits OF the same and Of every part thereof, and
AFTER deductng the expenses Of operating the said
railway and conducting it's business, and Of all the
improvements and all payments which may be made
Tor taxes assessments, charges liens prior to the
hen OF these presents upon the said premises or
part thereof, well just compensation for their
or his own services, to apply the moneys arising
to the payment of interest in the order In
winch such interest shall have become due or shall
pons, evdencng the right to such Interest," and after
paying aa interest which shall have become due to
the same to the satisfaction of the principal of
the aforesaid bonds which may be at any time I'M
ence."
1t will be that this article of the mortgage or
trust deed in of default in the payment Of in
terest according to the tenor Of the coupons annexed
10 the bonds expressly confers upon the trustees full
power TO enter into and upon all and singular the
premises by the mortgage or trust deed conveyed
intended so to be, and each and every part thereof,
and to have, hold and use the same to operate and
conduct the business Of the company's railway and
rents issues and profits Of tie same and Of every
The result is that under this article of
the mortgage or trust deed upon default upon the
part Of the company (the mortgagor) such is al
legged as one of the facts upon which the
plaintiff 1.-THE trustees) rest their right to
maintain this action for foreclosure and
are entitled to enter into and take possession of the
morgaged property without legal proceedings if they
are permitted to do, and if not permitted they
authorized to obtain possession by resortng to an
action under our code in the nature Of an action of
eJectment. If any of the property, into possession
of which they thus authorized to enter, is not
real estate and therefore possession Of it not attain
able by an action in the nature of ejectment there
Is no reason why possession may not be had by re-
sorting to action of claim and delivery Having
acquired possession Of the mortgaged property,
whether with or without recourse to legal proceed
ngs, the trustees are expressly authorized ITO COZ
lect and receiye all tolls, treghts, incomes, rents
ISSUES gmd profts Of the same ana o. ecery par
thereof" All this can be accomplished by proceed
ings at law.
The case is then in which the plaintiffs have q
complete and adequate remedy at law IN respect te
the very matters on account of which they seek the
appointment of receiver, and as the appointment
OF q receiver is exercise of equitable
risdiction-purely 80 in case Of this kind-the
fact that the plaintiffs have this complete and ade
q4ate remedy at law in accordance with familiar
rule, sufficient reason why receiver should not b.
appointed. In the case at bar, it is proper to ado
that the complaint does not alege that the trustees
have attempted to obtain possession of the mort
gagged property by entry otherwise, that the,
have even demanded such possession. Neither, 81
far we discover, there ANYTHING in the affidavit
used upon the hearing of the motion for receiver
| tending to show any such attempt or demand.
From the foregoing considerations it follows,
| our opinion, that the motion for receiver wa
| properly denied. 1t remains, however, to conside
some of the points made by the counsel for thu
plaintiffs in favor of contrary conclusion whichwou
not appear to be substantially disposed of by wha
we have already said It is argued that the trustee
are entitled to receiver because by the ninth arcl
of the mortgage trust deed it is provided that up
on the company's. default the trustees may ente
into and upon all the premises conveyed or intende
to be conveyed by the mortgage or trust deed, an
each and every part thereof, and have hold and us
the same Operating by their superintendent, man
ayers, receivers servants OF other attorneys O
agents." The claim is that the receivers here men
toned are receivers appointed by court, and that
therefore express authority is given to the trustee
to demand the appointment of such receiver con
tract right. Irrespective of the doubt whether it
competent for parties to prescribe the action of
court IN any such way rs this, it must be apparen
/
gage or trust deed, cannot have the sgni6
cation contended for. For receiver appointed b.
court is the receiver and officer of the court, Will
the receiver contemplated in the mortgage or trus
deed is the receiver of the trusteesstheir receiver
to use the precise language of the instrument, and
court. The only other positions taken by PLAINTIFF
counsel, to which we deem it necessary pal
hcularlv to advert further, such as are take
with reference to the provisions of statute (ttl
XII ch &C, gen st. in regard to receivers and to tn
practice Of courts Of equity in appointing receiver
irrespective of statutory authority as to all those
Neither does the reasoning, do the authorities
which they are sought to be sustained, fairly sho
any right to receiver in the at bar in which tn
plaintiffs have an adequate and complete remedy
the premises at law, and without any necessity fc
calling upon court of equity to appoint receive
If there was not this adequate and complete remed
at law, the considerations urged by plaintfs' cou1
sci would certainly possess great weight. But tn
object here sought by the Appointment of receive
is to lay hold of and preserve the very tos freight
incomes, rents, issues and profits which the plain
IFS are by the terms Of the company's cha
ter and of the mortgage trust deed authorize
and empowered to lay hold of and preserve by tai
ing possession of the mortgaged premises withol
suit, if they permitted to do, and if not pc
mitted, then by proceedings at law.
| These considerations appear to us to dispose
this opinion further.
The order denying the plaintiffs application for
receiver is affirmed.