The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-01-13
KEEP UP QUIBBLE.
Attorneys Wrangle Over Title
to Water Plant.
'City's Representatives Say
Nothing Can Be Done.
SUBMIT TO A COURT.
Pres. Street Suggests Allowing
u. s. Judge to Decide.
Question of Effect Of Various
Mortgages Discussed.

The members of the council had no
clearer solution laid before them at
last nights session for the clearing up
of the title to the waterworks property
than they formerly have possessed.
The special session practically re-
duced itself to three cornered discus
sion between City Attorney Spencer.
the city's special counsel, J. D. Nc
Farland and the attorney for the To-
pel1a Waterworks company, Mr.. Chas.
Blood Smith, as to the legal points in
volved- The discussion failed to reduce
the difficulty through an obvious plan
of practicable procedure in harmony
with the wishes and purposes of both
parties concerned, namely the city and
the Topeka Water comupany.
Mr.. Street, president of the water
company opened up the discussion by
stating the two main questions as he
understood them which had been raised
by the city's attorneys with regard to
the health Of the title
He stated that with reference to the
question of right of way that the COM
pany would assume the clearance of
tract and also with regard to the right
OF way over lot on Sixth avenue in
LindenWOod's addition. Mr.. Street sta
ted that the latter could be easily rec
I
ley at an expense of presumably of
$15e.
AS to the second question that had
been raised with regard to the title
concerning in fact the status of the
company's. title as affected by the re-
demption in equity of the third mort
gage bondholders, the legal succession
in the uuSteeship of the Atlantic Trust
| company by the Metropolitan Trust
company and the legal foreclosure of
the third mortgage bondholders. Mr.
stated that each of these questions had
been passed upon by decisions in
courts and that Judge Pollock in bank
ruptcy hearings in the circuit court had
held that the Pioneer Trust company
was legally appointed as trustee for the
third mortgage bondholders and there
fore this mortgage could not be held as
lien against the property in case of
sale. The counsel for the water COM
pany confessed that no foreclosure had
been made of this mortgage but main
tanned that holders of these mortgage
bonds would be compelled to pay on to
| the city the amount of the first and second
mortgages several hundred thousand
thousand dollars in excess of the
amount which the city viii pay for the
plant and that portion also OF the %
per cent of third ~ortgage bondholders
who had ratifies -fansfer of trustee
ship.
He cited his reason for holding that
the property of the water company
should be held as mixed property, both
personal and real. and claimed there
fore that the point raised by Mr.. Nc
Farland regarding the redemption in
equity did not exist and that under the
New York laws the Metropolitan Trust
company was the legal successor to the
Atlantic Trust company. As to the
$50, 600 in fire losses which had been
thrown out of court but on which the
time for appeal had not elapsed, he sta
ted that he did not consider them lien
upon the property and that the pend
| fv,er Of r
therrnore the judgment, if such should
be rendered in favor of these claims,
would not act as lien If the city pur-
chases the same within the next six
months.
He said in conclusions: s'I offer to
bring about a speedy termination of
this matter l am willing to prepare
bill and submit the matter to any
Judge in this United States circuit and
iitigate within the next so days or at
the utmost go
Mr.. Mcfarland arose and explained
in detail to the counsel his reason for
the stand which he had taken in his
opinion rendered. H = thought that
the courts had not lied definitely
the question as to whether the prop
ertv of the Topeka Water company
was mixed property and he was IN
clined to place it as real AS regard
ed the statement made by Mr. smith
that the third mortgage bondholders
would be compelled to pay the city
the amount of the first and second
mortgage he was inclined to differ he
held that the third mortgage holders
by the payment to the city of 100000,
| the amount of the bid made by Mr..
! k,treet when he purchased the prop
erty in 1896, could commence fore
closure proceedings. He maintained
that the city was only stepping into
the rights possessed by Mr.. Street If
purchase of the plant was effected.
civ Attorney Spencer stated that if
If were possible to secure all of the
second mortgage bonds it might tend
to settle the matter. But Mr.. street
returned that this was impossible, that
number of the bonds had been. lost
though he has in possession $5OO,OOO
worth of the $55O,000 bonds issued
Mr.. Spencer suggested that trustee
might be appointed by the third mort
that this was in the entirety impossi-
BILE that though the second mortgage
bondhoIders controlIeds90 per cent OF
the third mortgage bonds 1t would
take many months to secure the con-
sent That these bondholders num-
bered $50 and it would be entirely
probable that they would not consent
to the appointment of a trustee and
go through the trouble of foreclosing
the third mortgage in q legal manner
since it was not to their financial
gain.
might step in and appoint a trustee.
R1f this has already been done in the
limited States circuit court in the
harlxr41ptcy proceedings before Judge
Pollock. in 1904 and has failed to clear
matters inasmuch as it fails to bring
in the third mortgage bondholders as
party to the suit The city's at
torney stated that in consequence 1t
would he only going over ground that
had already been trodden if such
suggestion should be followed.
The mayor in disgust stated that he
thought the cfty's attorneys snouio De
enabled to suggest some sort of plan