Year: 1860

ers Of the bonds. They provided for the pay


ment OF the interest and principal of the bonds


and contained de easance. The instruments


also purported to give to the trustee an


authority to sell the property, upon conditions


at place and IN a mode prescribed. The ac'


ton was brought to obtain and the relief asked


was, sale under the order OF the court Held
| l. That the parties were entitled to such sale
| 2. That the property must be seld as real and


personal, and that the real estate must be sold
according to the rules governing sales of real
estate, and must, therefore, be appraised. 3


That the railroad, with its fixtures, constituting
an entire tract OF real estate lndiviSible for the
purpose of the sale, together with the franchise
connected Herewith, should be sold in like man
ner as an entire tract lying IN two or more coun-
ties, and the proceedings incder tai to the sale,
should be had in the county in which the ac
ton was brought. f. That the personal prop
erty should be sold as personal property but
might be sold with such precaution as to pre-
vent sacrifice and to produce the highest
price, which the court, in its discretion, might
order. 5. That the mortgages must be regar.
ded as proceeding on that part of the instru-
ment which operates as mortgage, and not I'M
der the power to sell, and therefore the court
would not he authorized, in this action, to
charge, upon the proceeds realized by sale, an
allowance for the trouble of such mortgages
or the lees of ther counsel. 6. That the mort
cages represented the bondholders, and the lat.
ter were neither necessary nor proper parties
to the action, and that any question as TO the
amount for which the security would be avail
able, must be made with the mortgages, by an
issue in the action z. That the mortgages as
between them and and the company, would be
authorized TO receive the proceeds of the sale,
but the company would have the right to re
quire that, upon, or before, payment of the pro
portion payable upon any bond, it should he
produced, and, if paid IN full, cancelled, or if
paid in part, such payment to be credited. 6.
That any qut stion as to the party entitled to
receive the money on bond, or as to the pro.
portion payable on any bond lost or destroyed,
or questions which may arise between the mort
gagees and any bondholder, need not be antici-
pated by any order to be made in the action be
tween the present parties, but should be diSpo
sed of when they arise in another action, in a
supplementary proceeding. 8. That an order
requiring the bondholders to prove their claims
and state the amountopaid for the bonds, was
erroneous


VIII party owing lands entered an agree
ment with the company by which it was allow
ed to enter on the lands and construct the track
Of its road. 1t was to pay for the use OF the
land, up n an estimate to be made by persons
selected, within six days after such estimate
The agreement prov dea that il payment was
not made, the interest which it gave, and the
fixtures and works constructed, should become
the property of the party, as il the agreement
had not been made. and "Said company had
without authority and in its wrong entered up
on said land and made SAID road through the
same" The estimate having been made, and
the payment not made within the time, an IN
junction was asked to restrain the company
from using he land for lis railroad track. Held,
That an injunction was properly refused, and
that the party should be left to pursue The or
d nary legal modes.


Judgm mt reversed