Randolph v. Wilmington & R. R.

McKENNAN, Circuit Judge. An early decision of this cause is desired, and as there has not been sufficient time at the command of the court for the preparation of an opinion at length, the following statement of the conclusions reached is made as the basis of the decree to be prepared and entered: 1. This court has jurisdiction to decree the relief prayed for, notwithstanding the fact that part of the railroad, the sale of which is asked, is within the state of Delaware, and such jurisdiction is not circumscribed by any limitation of the equitable powers of the state courts of Pennsylvania imposed by the constitution and laws of that state. 2. The mortgage set up in the bill is the first lien upon the main line only of the Wilmington and Reading Railroad Company, extending from the point to which it is constructed on the Philadelphia and Reading Railroad, at or near Birdsboro, to Wilmington, upon the franchises of the company in the state of Pennsylvania, and upon the other property described in the mortgage. 3. The mortgage is not a lien upon the franchises of the company in the state of Delaware. The express authority conferred upon the corporation by the supplemental act of the legislature of that state of February 7th, 1S6G, to pledge its real estate as a security for its loans, excludes any argumentative implication of authority to mortgage its franchises for that purpose. 4. The respondent corporation having made default in the payment of interest since April 1, 1S75, the whole of the principal and accrued interest secured by the mortgage fell due, and became payable on the third day of December, 1875. A decree will therefore be prepared by counsel for the sale by the trustees named in the mortgage of all the property bound by it as hereinbefore stated. Decree. And now, June 6th, A. D. 1S76, the above cause being heard on bill, answer, and replication, and having been argued by counsel for each of the parties thereto, and it appearing to the court that they have full jurisdiction to grant the relief prayed for in the said bill, it is finally ordered, adjudged and decreed as follows: [268] 1. That the mortgage in the bill of complaint mentioned, dated 3d March, 1868, and made by the Wilmington and Reading Railroad Company, to George Richardson, Abraham Gibbons, and George Brooke, as trustees, is a first lien on the railroad of said company, constructed between a point on the line of the Philadelphia and Reading Railroad, at or near Birdsboro, in the county of Berks, in the state of Pennsylvania, and the city ofWilmington, in the state of Delaware, and upon all the property and premises therein described, except upon the franchises possessed by said company under grants from the state of Delaware, and is effectual and binding thereon, and that the holders of the bonds secured by said mortgage are entitled to all the rights and securities thereby conferred, except as aforesaid. 2. That the said Wilmington and Reading Railroad Company did, on the 1st days of April and October. A. D. 1S70, make default on the semi-annual interest on the bonds secured by said mortgage, and that notice being duly served on them according to the terms of said mortgage, the whole of the principal sum thereby secured, as well as the unpaid coupons, fell due and were payable on the 3d day of December, A. D. 1S70. 3. That the Wilmington and Reading Company do, within five days, pay to Abraham Gibbons. George Brooke, and George Richardson, the trustees therein named, the amount due on the principal sum thereby secured, being one million two hundred and twelve thousand five hundred dollars ($1,212,-500) with the several unpaid coupons attached to said bonds, together with the interest which has thereon accrued since the several dates of their maturity. 4. That in default of such payment within the period named, the railroad of the said Wilmington and Reading Railroad Company, extending from a point on the line of the Philadelphia and Reading Railroad, at or near Birdsboro. in the county of Berks, in the state of Pennsylvania, to the city of Wilmington, in the state of Delaware, with all the rights, privileges, immunities and franchises of the said Wilmington and Reading Railroad Company, under any and all grants of the state of Pennsylvania, together w'ith the equipment thereof, consisting of all the locomotives. cars and rolling stock belonging to said company, and also all rights of way and land occupied by or used in connection with or for the construction, completion and maintainanee of said railroad, with all the bridges, culverts. side tracks, depots, depot grounds, stations. machine shops, buildings, or other structures and improvements of every kind and description. acquired or erected or connected with said railroad, whether in the states of Pennsylvania or Delaware, conveyed by said mortgage to Abraham Gibbons, George Brooke, and George Richardson, trustees, be exposed to public vendue or outcry in one entire lot, in the city of Philadelphia, by the said Abraham Gibbous, George Brooke, and George Richardson, trustees, to whom all needful authority for that purpose is hereby given, after notice of the time, place and conditions of sale, and of the property to be sold, has been given by advertisement in two daily papers in the city of Wilmington and the city of Philadelphia, and one paper in each of the counties of Berks and Chester, twice a week, if the said papers are so often published, for three months prior to the day of sale (a copy of the form of such advertisement is annexed hereto). The property shall be sold to the highest and best bidder upon his signing the conditions of sale, to wit: One hundred thousand dollars ($100,000) of the purchase money shall be paid in cash when the property is struck off, and the balance within thirty days (30) after confirmation of sale by this court, provided that the said balance of the purchase money may be either paid in cash or settled for by receipting to the said Abraham Gibbons, George Brooke and George Richardson. trustees, for the dividend of the said balance of the purchase money, which may appear to be payable on any of the bonds of the said railroad company, and matured coupons attached thereto, secured by the mortgage of March 3d. 1868. which may be held by said purchaser or purchasers, and the delivery of the said bonds and coupons for said settlement shall be deemed equivalent to a cash payment to the extent of the dividend payable on each bond, and be a full acquittance and discharge of said purchaser or purchasers, and when the said purchase money shall have been paid and receipted for, and the said sale confirmed by this court upon the return thereof being made to the court, then the said Abraham Gibbons, George Brooke and George Richardson, shall execute and deliver to said purchaser or purchasers of said railroad, property, estates, premises, rolling stock, appurtenances and franchises, except as aforesaid as above set forth, a good and sufficient deed or deeds granting and conveying the same to him or them in fee simple. And the said purchasers shall thereupon take and hold the same free, clear and discharged from all in-cumbrances subsequent to the lien of said mortgage, and claim or demand of the Wilmington and Reading Railroad Company, or of any person claiming under them thereon or thereto, by way of equity of redemption or otherwise, and the said Wilmington and Reading Railroad Company, and all persons claiming under them, shall be thenceforth absolutely debarred and foreclosed of and from any such claim or demand whatsoever.