Daily globe., 1878-04-08

upon them is before us, while the findings
of law appear to us to be entirely correct.
The claim made in this court with reference
to the purchases made by Hart by Lash, ,Tur-
rell, Bidwell and Burwell (being substantially
that made by the plaintiff with regard to the I
same purchases) and the manner in which
they should be treated was not within the
issue made below by Nobles' answer, and as
respects Mobiles was not submitted to or
tried, or passed upon by the court below. !
It follows that Mobiles cannot be heard to
make it here.
We are not, however, to be understood as
asserting that he or his successor in interest
can now be heard to make it anywhere.
The Judgment is affirmed,
BERRY, Judge.
Edmund Rice ct al trustees, appellants, u.s. The
First Division Of the st. Paul &; Pacific Rail
road company, respondent.
SYLLABUS.
This case presents substantially the same
questions determined at this term in Edmund
Rice ct al. VS.. the ST. Paul and Pacific railroad
company ct al. The order denying the plain
tiffs' application for a receiver is affirmed for
the reasons assigned in that case.
OPINION.
At common law, after mortgage became
forfeited by non-payment of the moneys Sc
cured thereby, the mortgage was authorized
to proceed Immediately to obtain possession
of the mortgaged premises in an action of
ejectment. Ry our statute, ga mortgage of
real property is not to be deemed convey
ance 80 as to enable the owner of the mort
gage to recover possession of the real prop
erty, without forecloseure.'' The effect of
this statute is to cut off the common law
right to maintain an action, for the posses
sion before foreclosure. By special
provision Of it's charter the ST. Paul
& Pacific Railroad company is en-
power to confer upon its mortsageess, the
right of possession of mortgaged property,
any other conditions that may be agreed
upon and expressed in the mortgage. The
effect is that by these charter provisions it is
made competent for the company, by the
terms of mortgage or trust deed, to confer
| upon its MORTGAGE or trustee right to the
possession of mortgaged property, upon de-
fault in the payment of money secured there
by. and such right as will entitle the mort
gagee or trustees to sustain an action under
our practice, in the nature of ejectment to
| obtain possession, if it is withheld.
Held, that under the ninth and twenty
first articles of the mortgage or trust deed
| involved in this action in case of default in
the payment of interest according to the
tenor of the coupon annexed to the bonds
secured by said mortgage OF trust deed. full
power is expressly conferred upon all and
singular the premises by the mortgage or
trust deed conveyed, OF intended SO to be-
and each and every part thereof, and to have
hold and use the same to operate and con-
duct the business of the company's railway
and to collect and receive all tolls, freight
incomes, rents, issues and profit of the same
and every part thereof. The resul
is that upon the default upon the par
of the company, such as il
alleged in this case, as one of the facts upo1
which the trustees or mortgages rest thei
right to foreclosure and to a receiver, tn,
trustees are entitled to enter into and tax,
possession of the mortgaged property with
out legal proceedings, if they are permitted
so to do; and if not so permitted, they arr
authorized to obtain possession by resortinf
to an action under our code, in the natur
of an action of ejectment. Having acquire.
possession, whether with or without recours
to legal proceedings, the trustees are ex
pressly authorized to collect and receive al
VOllS, 1T0lsSutS, 1uCOLucS. IcuGS duu ISSUES y
the same, and of every part thereof.
This action is brought to foreclose tn
mortgage or trust deed aforesaid, made b
r said company to the plaintiff as trustees. Il
T aid of the foreclosure a receiver is praye,
3 for. The prayer is, that pending this sui
3 the court forthwith appoint receiver t
: take immediate possession, control an
1 management of the line of railroad fror
t st. Paul to Watab, and of all the appul
| tenances, rolling stock, lands and other prop
e erty, belonging or appertaining to said lin
g of road, and covered by said mortgage Q
1 ST. 900, and that full power and author
! ity be given him to hold, use, manage, CO,
9 troll and operate the same, with the usu;
9 power of receiver in such cases. Held, tha
# upon the foregoing facts, the case
Z, one in which the plaintiffs have compiler
e and adequate remedy at law in respect to tt
: very matters, on account of which the al
II pointment of receiver is sought, and tina
= therefore, the plaintiffs are not entitled
L have such receiver appointed. The Mint
II article of the mortgage or trust deed autho
II ICES the trustees upon the company's defau
d to take possession of the mortgaged propert
h and to have, hold and use the same, ''operd
re ing by their superintendents, managers, I
rs ceivers, or servants, or other attorneys,
N agents. Held, that the receivers, here me
u toned. are not technical receivers to be a
= pointed by court, but the receivers of t
is trustees. The order denying the plaintiff
to application for receiver is affirmed.
G. BERRY j.
so Edmond Megy, a leader OF the party viii
es assassinated Archbishop Darboy during |
Sc par;s Conmune IN 1871 10 now LIVING in N