The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1897-06-22
THE g. F. & Y. v. CASE.
Judge Slm0nton Files His Decree I'm the
Supplementary Proceedings-The Form.

Supplementary Proceedings-The Form.
er Decree Of Foreclosure Amrmed.
His Honor Judge Simonton. Of the
United states circuit court, on yester-
day filed with Mr.. w. n. Shaw, clerk of
the United States court hare. his de-
cree in the supplementary proceedings
held at Asheville, June 9Th. 1t is as
follows:
The United States of America,
Eastern District Of North Carolina.
In the Circuit Court.
Fourth Circuit. In Equity.
The Farmers Loan and Trust Company
The Cape Fear and Yadkin Valley Rail-
way Company, ct. al. Consolidated
Cause.
A decree for the sale Of the railroad
property was entered on the 31st day Of
March. 1897. BY that decree it was ordered
that the property be sold az a whole. The
mode of sale, whether in divisions or as
an entirety, is wholly within the dis
erection of the court. Among the reasons
given by the court for this mode of sale
was the passage of an act by the legisla-
ture of North Carolina at it's last session.,
annulling section sos of The Code. The
effect of this act would be that If a sale
We're made by the road in separate
divisions, doubt would exist as to the
right Of the purchaser to obtain a charter
of incorporation. The counsel for the New
YORK DODOnOl0eTS asked a TenedTlHS OF
the decree upon the weight of this reason.
Their request was granted and the case
reheard. After an exhaustive argument
the apprehension existing in the mind Of
the court has not been relieved. ON the
contrary, the difficulty in obtaining, under
the law of North Carolina, a charter for a
division of this road, were 1T sold in this
way, and separate purchasers had, seems
more manifest. 1t is not a question what
would be the ultimate decision of a court
of last resort as to the right of such a
,,~nIaen- p1f & iG tho axtGfanpG nf q
doubt on this point, and the necessity for
the solution of the doubt by judicial pro-
ceedings. 1t is urged with great force
that each division, If the divisions were
put up separately, would be subjected to
the same disadvantage, and that 1t would
operate equally upon all. That under these
the relative value of each division would
not be impaired. But this is not the case.
Those interested in one division may not
feel the force of the doubt, and they
would be willing to go up to the full ex-
tent Of the value of their division. On
the other hand, those interested in the
are invited to sales of this character. may
feel the full force Of the doubt and be
delivered from bidding the value of these
other divisions In such case the bids
Giving careful reconsideration Of the
whole matter, the conclusion heretofore
reached has not been changed.
At this hearing another matter has been
presented by way Of petition, showing the
relation of the South Carolina Pacific to
the Cape Fear and Yadkin Valley railroad.
1t appears that this first named road, by
contract between the two corporations
was practically merged into and made a
part of the former road. That by way OF
fortifying this agreement, and of provid-
ing for casualties, a lease for thirty years
of all it's property and franchises was
made by the South Carolina Pacific Rail,
Yadkin Valley Railroad Company, and
that certain shares of stock in the former
company were assigned to the latter com
pany. 1t also appears that these shares
are the property of the North State
Construction Company. All of this mer-
ger and lease antedated the mortgage in
this case.
Under these circumstances all the right,
title and interest Of the Cape Fear and
Yadkin Valley Railroad Company and of
the parties to this suit, should be sold at
the same time and as a part of the prop
erty Of the Cape + ear and Yadkin Valley
Railroad COMPANY. and the decree must
be modified to meet this result.
1t has been suggested that the provision
that any purchaser at the sale ordered.
when the property is struck off to him,
shall at once pay to the master commls-
ficient sum to make up together with the
amount already deposited by him as afore,
said twenty per cent. or his accepted
bid" may be too OnerOuS.
Let the decree in this particular be SO
amended as to strike out the WORDS
twenty per cent. of his accepted bid
and to insert in lieu thereof the words
1.-THE sum of two hundred thousand dol
lars"
Let the decree also be amended so as
to require that the cash portions or the
monies arising from the sale be deposited
in solvent national banks in the state OF
North Carolina. in such amounts as TO
each bank as will render the deposit per-
fectly safe.
In all other respects the decree OF
March 31st, 1897, is hereby reaffirmed and
CHARLES II. SIMONTON.
Circuit Judge.
18th June, 1891.