Gilman v. Illinois and Mississippi Telegraph Company. Coykendall, Garnishee v. Idem

*613 • Mr. Justice Swayne delivered the opinion of the court. These cases have been argued together, and will be decided together. The case at law will be first considered. On the 24th of May, 1872, the telegraph company recovered in the Circuit Court of the United States for the District of Iowa a judgment for the sum of $23,734.04 and costs. On the 13th of June following, execution was issued. On the 17th of that month, the marshal .to whom the process was directed served it Tby attaching as garnishees several persons, one of whom was Coykendall, the plaintiff in error. On the 27th of October, 1873, he filed his answer; and on the 27th of Octoher, 1874, he filed a further answer.'^ ^ By the first answer he admitted, that, since he was garnished, he had received for and paid-over to the railroad company more than $37,000. In his second answer Tie set forth that he was the agent of the railroad company at Des Moines; and that his duties were to sell tickets and receive and ship freight, and to receive the charges upon such freight. For the moneys received both for tickets and freight a large proportion belonged to other companies, but how much he did not know. All the moneys he received were regularly transmitted to the assistant-treasurer of the Des Moines company. The proper apportionment of the moneys was madé by the officers of that company at Keokuk, and the Des Moines company was accountable to the other companies for what belonged to them. He was not in the employment of any other company or person during the time mentioned, and-was.not responsible to any other company or person for the moneys which he received, as before stated. The gross amount received by him, between the time he was garnished and the appointment of the receiver who took possession of the road, was $27,000. The case was submitted to the court, and argued by the counsel upon both sides. The next day it was stated to the court by the counsel for the defendant that proof could be adduced of the proportion of the moneys in question which-belonged to other companies, and time was asked to procure it. The application was overruled, and the court gave judgment *614 for §27,000 and costs. The garnishee thereupon excepted, to the ruling of the court refusing further time. The case having been submitted to the court and argued by the counsel of both parties, the garnishee not asking for a jury,-, the record in this respect shows no error. It is to be taken that both parties waived a trial by jury, and they-are bound accordingly. Phillips v. Preston, 5 How. 278; Campbell v. Boyreau, 21 id. 224; Kelsey v. Forsythe, id. 86. The proceeding not having been according to the act of March 3, 1865, this court' has no power to examine any ruling of the court below excepted to. .during the progress of the trial. Campbell v. Boyreau, supra; Guild et al. v. Fontin, 18 id. 135; Kearney v. Case, 12 Wall. 275; Dickinson v. The Planters’ Bank, 16 id. 250. The only point attempted to be presented by the bill of exceptions was the refusal of the court to give time for the production of further evidence. If this subject was before us in such a shape that we could consider it, it would be a conclusive answer that the matter was one resting in the discretion of the court. Its determination, therefore, could not be reviewed by this tribunal. This brings us to the examination of the case in equity. Thé bill was filed'to prevent, by injunction, the collection of the moneys upon which the judgment in favor of the telegraph companies was founded. There is no controversy between the parties as to the facts.' On the 16th of February, 1857, the railroad company, by its then corporate name, executed a mortgage; and on the 1st of October, 1868, by its corporate name as altered, executed another. Both were given to- secure the payment of its bonds as set forth. A part of the premises described and pledged by both mortgages, besides the road, was its income. In case of default in the payment of interest or principal, the mortgagees were authorized to take possession, and collect and receive the income and earnings of the road, and apply them to the debts secured, and, upon the request of one-third of the bondholders, to sell the mortgaged premises. The conditions of both mortgages having been broken, the mortgagees in the second mortgage filed their bill of foreclosure in the Circuit Court of Polk County, in the State of Iowa. *615 The mortgagees in the sécond mortgage — various judgment and. lien creditors, among the former the telegraph company — were made defendants. On the 31st of May, 1873, a decree of foreclosure and sale was rendered.' It fixed the priorities. of the several parties, and held that the judgment of the telegraph company was a lien subject tó the mortgage in suit .and other specified liens. It ordered a sale of the mortgaged property. The road'was still in possession of the company. The decree made no. provision for disturbing their possession, and none whatever as to the income of the road between the time of the decree and the time of the sale. The telegraph company proceeded, as .we have stated, in disposing of the case at.law. On the 20th of June, 1873, the appellants, who are the trustees in the two. mortgages, filed this bill. On' the 9th of September, 1873, after the sheriff had advertised the mortgaged premise's' for sale, the decree in the State court was amended by providing for the appointment of “ a special receiver of all the income and earnings of the road” between the date of the decree and. the time fixed by the sheriff for the sale to be made by him. This was done with a saving of the rights of the telegraph company The special receiver took possession on the 15th of September, 1873. The sale by the sheriff was made on the 17th of October, 1873. The road .was operated by the company up to the time when the receiver took possession. During this period, the fund was received for which judgment was given against Coykendall. The proceedings in the case at law having-been held valid, the telegraph company is entitled to the fund, in controversy, unless the appellants have-, shown a better right to' it. The question arises upon the mortgages".' The civil law is the spring-head of the English jurisprudence upon’the subject of these securities. Originally, according to that jurisprudence, mortgages of the class to which those here in question belong vested the fee, subject to be divested by the discharge- of the debt at the day limited for its payment. If default was then made,.the premises were finally lost -to the debtor. ’ In the progress of • time moré liberal views prevailed, and the debt came to be considered as the principal thing, and the mortgage only, as an- *616 incident and security. In the present state of the law, where there is no prohibition by statute, it is competent for the mortgagee to pursue three remedies at the same timé. He may sue on the note or obligation, he may bring an action of ejectment, and he may. file a bill for foreclosure and sale. 1 Hill, on Mort. 9, 62; id. 104, 111; Andrews v. Sutton, 2 Bland, 665. The remedy last mentioned was resorted to in the State court by the mortgagees in the second mortgage, those in the first having been made parties, and that mortgage thus brought before the court. That court, therefore, had full jurisdiction as to the rights of all the parties touching both instruments. It would have been- competent for the court in limine, upon a proper showing, to appoint a receiver, and clothe him with the duty of taking charge of the road and receiving its earnings, with such limit' of time as it might see fit to prescribe. It might have done the same thing subsequently, during the progress of the suit. When the final "decree was made, a receiver might have been appointed, and required to receive all the income and earnings until the. sale was made and confirmed, and possession delivered over to the vendee. Nothing of this kind was done. There was simply a decree of sale. The decree was wholly silent as to the possession and earnings in the mean time. It follows that neither, during that period, was in any wise affected by the action of the court. They were as if the decree were not. As regards the point under consideration, the decree may, therefore, be laid out of view. The stipulation renders it unnecessary to consider the amendment to the decree. Without that stipulation, the result would have been the' same. It could not affect rights which had attached before it was made. Nothing was done in the exercise of the right which the mortgages gave to the mortgagees to intervene and take possession. We may, therefore, lay out of view also both these ¡topics. This leaves nothing to be examined but. the effect of the mortgages, irrespective of any other consideration. A mortgagor of real estate is not liable for rent while in *617 possession. 2 Kent’s Com. 172. He contracts to pay interest, and not rent. In Chinnery v. Black, 3 Doug. 391, the mortgagor of a ship sued for freight earned after the mortgage was ■ given, but unpaid. Lord Mansfield said, “Until the mortgagee takes possession, the mortgagor is owner to all the world, and is entitled to all the profit made.” It is clearly implied in these mortgages that the railroad company should hold possession and receive the earnings until the mortgagees should take possession, or the proper judicial authority should interpose. Possession draws after it the right to receive and apply the-income. Without this the road could not be operated, and no profit could be made. Mere possession would have been useless to all concerned. The right to apply enough of the income to operate the road will not be questioned. The amount to be so applied was within the discretion of the company. The same discretion extended to the surplus. It was for the company to decide what should be done with it. In this condition of things, the whole fund belonged to the company, and was subject to its control. It was, therefore, liable to the creditors of the company as if the mortgages did not. exist.- They in no wise affected it. If the mortgagees were not satisfied, they had the remedy in their own hands, and could at any moment invoke the aid of the law, or interpose themselves without it. They did neither. In Galveston Railroad v. Cowdrey, 11 Wall. 459, substantially the same question arose as that we are considering. The mortgage there contained provisions touching the income of the road similar to those in the mortgages before us. This court held, that, at least until after a regular demand was made, those .who received the earnings were not bound to account for them. See also The City of Bath v. Miller, 51 Me. 341; Noyes, Receiver, v. Rich, 52 id. 115. Upon both reason and authority, we think the appellants have no right to the fund in controversy. Decree affirmed. Judgment affirmed.