Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-09
SUPREME COURT.
DECISIONS OF CASES FILED YEsEER-
DAY.

DECISIONS OF CASES FILED JESTER
Day.
Edmund Rice, Horace Thompson, and Samuel
J. Tlden, Appellants, VS.. The First Division
of the st. Paul and Pacific Railroad Com
pany; George L. Becker, William G.. More
head, Henry Hale, and James E. Southworth,
ss Trustees, and Martin Farrant John D.
Gray, Augustus Mooers, Peter s. LeClaire,
Charles Haywood, James J. CARTRIDGE, and
Frank Honore, Respondents.
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.
OPINION.
The order denying the plaintiffs application
for receiver, is affirmed, for the reasons as
signed IN that case. BERRY j.
Edmund Rice. Horace Thompson and Samuel
J. Tilden, Trustees. Appellants, VS.. The st.
Paul and Pacific Railroad Company, The
First Division of the St. Paul and Pacific
railroad Company, George i. Becker, William
G. Morehead and George T. M. Davis, Trus-
tees; Martin Farrant and Peter s. LeClaire,
John ID. Gray, Augustus Mooers, Charles
Haywood, James J. CARTRIDGE and Frank L.
Honore, Respondents.
SYLLABUS.
At common law after mortgage became for
feited by non-payment Of the moneys secured
thereby, the mortgage was authorized to pro-
coed Immediately to obtain possession of the
mortgaged premises in an action of ejectment.
by our statute mortgage of real
property is not to be denied conveyance, SO
as to enable the owner of the mortgage to re-
cover possession of the real property without
foreclosure" The effect of this statute is to
cut off the common law right to maintain an
action for the possession before foreclosure
BY special provision of its charter the st. Paul
d Pacific railroad company is empowered to
confer upon It's mortgages the right of pos
mon law conditions, or upon any other con-
dltlons 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 a
property upon default in the pay
ment of money secured thereby
and such right as will entitle the mortgage
or trustee to sustain an action under our prac-
tice in the nature of ejectment to obtain
possession of it, is withheld.
Held, That under the 9th and Dist 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 coupons
annexed to the bonds secured by said mort
gage or trust deed, full power is expressly CON
ferred upon the trustees to enter into and upon
all and singular the premises by the
mortgage or trust deed conveyed or 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 8 railway,
and to collect and receive all tolls, freights,
moneys, rents, issues. and profits of the same,
and every part thereof. The result is,
that upon default upon the part OF
the company, such as is alleged in this
case, as one of the facts upou which the trus-
tees or mortgages rest their rights to fore
closure, and to a receiver, the trustees are en-
titled to enter into and take possession of the
mortgaged property without legal proceedings
If they are permitted SO to d. and if not Sc
permitted, they are authorized to obtain pos.
session by resorting to an action under oul
code in the nature of an action of ejectment
Having acquired possession, whether with OF
without resource to legal proceedings the trus
tees are expressly authorized to collect and re
ceiye all tolls, freights, moneys, rents and
issues Of the same, and to every part thereof.
! This action is brought to foreclose the mort
gage or trust deed aforesaid made by said com
Pany to the plaintiffs as trustees. In aid Of
the foreclosure receiver is prayed for.
The prayer is that pending thi.
suit the court forthwith appoint receiver t
oesAo AIAAAleu1<aUc pOsSehS1O1l, COnIrOl ana man
agement of the line of railroad from st. Pau
to Wata and of all the appurtenances, rolling
stock, lands and other property, belonging O
| appertaining to said line of road and covered
by said mortgage of one million two hundred
thousand dollars, and that full power and au
therity be given to him to hold, use, manage
control and operate the same with the usua
power of receiver in such case.
Held, that upon the foregoing facts the cas-
is void in which the plaintiffs have complet
and adequate remedy at law in respect to tn
very matters on account of which tn
appointment of receiver
sought, and that therefore the plaintiffs are no
entitled to have such receiver appointed. Thu
ninth article of the mortgage or trust deed au
! thorizes the trustees, upon the company's de
| fault to take possession of the mortgaged prop
erty, and to have, hold and use the same, cope
rating by their superintendent, managers, re
celvers or servants, or other attorneys o
agents.
Held, that the receivers here mentioned ar
not techn ical receivers: to be appointed by
court, but the receivers of the trustees.