New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1881-05-09
THE RIGHT ITO REDEEM CUT OFF

AN IMPORTANT DECISION N The COURT OF APfEAls
A STATUTE REPEALED By IMPLICATION.
One of the most important of recent decl-
sions by the OF Appeals that in the ease Of Dan
lei Pratt and others against Edgar Aunson This de-
cison holds that the second Of the Act Of s53
(ch 5O2 allowing stockholders TO redeem in proportion
to their stock within months after title acquired by
the purchaser at foreclosure sales Of railroad mortgages
has been repealed by implication.
The sodus Bay and Corning Railroad Company on
the day OF its organization In March 1873 executed TO
the Farmers Loan and Trust Company mortgage upon
all it's property the payment OF certain bonds
Default was made and the m0rtaged property was dis
posed Of at foreclosure sale June 1s76 20 the defend
ant Munson. The plaintiffs, who owned only one share
OF the capital stock brought this action because the
purchaser Mr. Munson had refused 20 accede TO their
demands and allow them 10 redeem under the Act OF
1853 The second section Of Tins act declares that any
stockholder OF railroad company shah for six months
after foreclosure sale have the right paying 70 the
purchaser under such sale equal 20 such proper
ton OF the price paid such sale such stockholders
stock shah bear 10 the whole capital stock Of the com
pany, be entitled t. have the same relative amount O
stock or interest the railroad company its road fran
chses and other property This provision has worked
very serious annoyance and difficulty in many such fore
closure sales and is said that recently large sums OF
money have been paid under the suppOsiton that the
statute was st IN force, 10 quiet the apparent title
arising under II.
Judge Danfor h. IN giving the opinion OF the Court Of
Appeals comments upon the language Of the statute, and
saye that II it's object 70 enable each stakeholder 20
continue his interest IN the corporate property, contrib
uting to the purchaser a certain proportion Of the
paid and 40 becoming with him tenant IN common OF
the estate that the directions Of the section are very In
adequate and could hardly afford 70 anyone indemnity
for the loss sustained by the extinction OF the corporation
OF which lac has been a member But In 1884 law wac
passed amending the General Railroad Act OF 1850 de-
- .as..N
or fixtures Of any railroad corporation. which
might be sold by virtue ~ any mortgage executed
by such corporation, should acquire title to the same
associate with him number Of persons and make and
articles OF association prescribed by the Act Of $50
and such purchaser or purchaser ana th,f assocHs
should hereupOn be corporation with al the powers,
Visions OF this act" II the Court went no
further Judge DanfOrth says II wOnld seem
Of 1883 But the Act Of 1874 dosgned as s title says
ITO facilitate the reorganization Of railroads sold under
panies In such cases. while substantially like the Act Of
1854 makes it, additional provisions In such form that
continuance Of the hight claimed under the Act Of 1888
This Act OF ls74 declares that me new com.
shai become and be body polite and corporate. and be
vested with all the rights privileges and franchises
IN the corporation formerly owning the property 30
Judge Danforh after discussing the statutes at
length then The statute 81 1888 does not con
uSatjon ia imposed on the purchaser to assist IN
forming enc 80 provision is made for II. Upon the
foreclosure sale the purchaser takes the property 20 do
with IL ~ he chooses he might deal with lands or
chats subject only 10 the right given 20 the EtOckhod
erg BY OF the Act ~ 1883 TO participate In the
purchase upon the terms and within the time therein
mentioned. That night must De deemed taken
away by the power OF disposition conferred
upon the purchaser 10y the above acts for the
Inability 20 convey 70 the stockholders Of the
company interest in the property purchased
cannot cOexist with the power 20 convert
the whole for other purposes and TO other persons.
Again the Act OF 1874 secures 70 the Stockholders IN the
old company right 70 participate In the benefits OF re-
Organization IN event only-when The title
Il acquired 10 the railroad property snd franchises
pursuant TO plan agreement FOR the rcadustment
OF the respective interests therein OF mortgage creditors
and etOckhOlders in the old company. This provision
also Ia inconsistent with the right embraced IN the sec
ond section OF the Act OF 1853 II 10 us that these
acts were Intended by the Legislature 20 prescribe
the rule applicable 10 the stakeholder In
railroad company and the purchase upon foreclosure
Of lis property and franchises that they rcpngnaut
IL the provisions OF the Act O $50 upon the sub
feet and therefore repeal them. according 20 the maxim
that every affirmative statute IA repeal 10y Implication
of precedent affirmative statute far IL H contrary
thereto think, therefore the provisions OF the Act
of 1874 on which the plaintiffs rely not in force
The time OF the under the foreclosure and that the
plaintiffs acquired Of action against the defend
ants" - , oa.,s -, e
tbe paintiffs h W. Huntington and J. r. Parkhurs Of
Bath, for Mr.. MunsOn.