The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-21

IIendenon's contract with the delendent
railroad company Of November, 1875, which
contract OF Henderson with tho rhil-
road company the exhibits md claims
that hls right Hereunder prior md superior
10 the right OF oomplannnls qnd asked 20 be
dismissed with hs reasonable cost,
The oOmplan,nt by the dtplplllons Of
Wallace lmit, ,luhn b. j, Frntun Jeilrron
Brumback nnd Ira Harris with tho exhibits
referred 10 In their depostlons and attached
thereto BIZ the special examiner mud returned
with said dispositions and by the production
Of ono hundred mud ninety of said bonds and
one hundred and ninety of the January, 1878,
coupons taken of the same with certificate
Of protest Of sail coupons for nOn-pnyment
by Charles Fox, Notary Public, and
by such sworn allegations Of tho
bill rs nro either admitted by
tho defendant Reed or not denied
by him for want Of any proper knowledge,
information or belief IN reference thereto IN
my Judgment sufficiently s'abish their right
10 nll the relief they seek by said bill against
nll of tho defendants, In addition, however,
to the bin md the answers thereto, and the
exhibits anG proofs just Indicated, the com
painNnts now have the benefit of the faci
that NIL of the defendants, except the de-
PENDANTS Reed and Henderson, appear and
consent that the relief prayol for In The bill
be granted, and with leave of the court file
tho following written evidence Of said con-
sent.
"Now come The undersigned defendants
herein, ,iE the Dallas n Wichita railroad
company, and admit the bonds md mortgage
d, scribed in compartments bill of complaint
wore duly executed and delivered Ms charged
in said bill and that said bonds were sold and
assigned a' charged in sail bill. That tho
interest on tho coupons OF said bonds matur-
ing jNnuarJ |, 1878, was duly demanded By
the holders Of al coupons That said IN.
tcrcst WIS not pad then md has never been
paid. And said defendants consent and
agree that the relief prayed for in eid bill
be granted for the purposes of this suit.
Word " koNrby, attorneys for the Dallas "
Wichita railway compuny r. W. Gold
thwnite for himself and Schneider Il Davis,
NJ. Pointer X $, R1sscr, a, r. Obcnchain,
Castor q ThomNs and Charles Frcl Tucker
solicitor for IL. 7. Rains
As to the defendant Reeds claim that he
has right TO the possession Of the railroad
prior and superior TO the right of complain
ants, concur in the view taken by the Cir
cult Jtdg' and adopt the language used by
him his opinion, delivered up, n
overriding the notice to vNcAtc the order mp
pointing thesRelciver. The Circuit Jud. o
snid; ut is urged in behalf OF the possession
of Reed, which was displaced by the
Receiver, that llenderson's contract for con-
structon antedNtcd the deed of trust md
! rovded That Henderson should retain the
possession Of the road and receive ita issues
and profits until the completion of the con-
tract reconstruction, and hat Reed had all
the rights ofllcnderson, and his right 10 pos
session and usoand enjoyment of tho railroad
under to construction contract was older
and better than the rights Of the trustees
nam, in the trust deed. C0nceding that
Reed stands in the shoes of Henderson, what
were llenders> rights under the facts He
MS collateral security to the Roll
ing Mill company, one hundred and ninety
bonds, secured by deed Of trust, which, on
n certain default, gave the trustees the
right to take possession OF the
railroad company's property and
receive its rants and profits. As between him,
therefore, and the trustees he would be es-
topped from asserting his right of possession
under his contract for construction. The
transfer of the bonds secured by such deed
of trust was II clear waver Of his contract, SO
that neither Henderson nor Reed can be
heard to claim possession against the trustees
of the deed of trust.
On the whole case, therefore, am of the
opinion that comphinants should have the
relief they seek by their bill in this case, and
it will be so decreGd.
A u MC('OpNICl<,