Citation Numbers: 41 Me. 109
Judges: Cutting, Goodenow, Hathaway, Rice, Tenney
Filed Date: 7/1/1856
Status: Precedential
Modified Date: 9/24/2021
The demurrer admits the truth of all the material allegations in the bill, but the defendant, notwithstanding, denies that the plaintiffs have assigned sufficient cause to give this Court jurisdiction, or to entitle them to relief.
The bill refers to the mortgage of February 6, 1851, which we are authorized to consider as a part thereof, and to give it a construction so far as it may become necessary, under the present pleadings. It conveys in substance all the corporate property, real and personal, “unto the said Myers and his assigns, who shall become the holders of the bonds and coupons hereinafter mentioned, each in the ratio of the bonds so held by him.” — “To have and to hold the aforegranted and bargained premises, with all the privileges and appurtenances thereof to the said Myers, his heirs and assigns, and to the holders of said bonds and coupons, to their use and behoof forever.”
And the plaintiffs covenant that they have “good right to sell and convey the same to the said Myers, and the holders of said bonds in manner aforesaid.” “ Provided, they pay to said Myers, or his assigns, who shall become the holder or holders thereof, the amounts specified in the several bonds and coupons pertaining thereto,” &c. “And if said contract shall also be fully performed by said corporation in all other respects,” then said deed is to be void.
Then follows that clause in the deed, out of which it sepmg
The plaintiffs allege that the defendant, claiming authority by virtue of the foregoing provision, has taken possession of the corporate property, and advertised to sell the same, and reference is had to his advertisement of April 3, 1856, in which the defendant notifies the corporation that, “By virtue of the deed to me, executed by said company of the trust powers therein named, and by the concurrence of several of said bondholders, as well as in my own behalf, as grantee and bondholder, pursuant to the terms of said deed, that for breaches of the conditions and covenants in said deed contained by said company, to and with the undersigned, as contractor, and to and with the bondholders described in said deed, I did, on the thirty-first day of March, last past, and for the purposes of the deed and trust aforesaid, take full and complete possession of the premises and property therein described,” &c., “and that I shall dispose and sell the same for the purposes aforesaid, by public vendue,” &c., “to the
It may perhaps become important, at some future time, should all the parties interested come properly before us on bill, answer and proofs, or by due process of law, to ascertain what the defendant’s interest is in the mortgaged premises, whether it be any thing more than as a bondholder, and whether, if there should ever be a sale, as contemplated by the condition named in the deed, it could be perfected except by means of a process in chancery, when, as in cases of trust, all parties interested may be duly represented, and their several interests protected; and whether the whole property, including the franchise, or only the right to take toll, can be legally sold; but none of these considerations are now presented, except incidentally.
The bill alleges that the clause in the proviso of the mortgage, viz.: — “And if said contract shall also be fully performed by said corporation in all other respects,” was fraudulently inserted, or was done without the plaintiffs’ authority, which the demurrer admits to be true; and if so, then for any damages for the non-performance of the construction contract, it may be questionable whether the mortgage will afford the defendant as “ contractor” any security.
As a bondholder, has the defendant the power under the mortgage to sell ? If so, he must derive his authority solely by virtue of the condition in the deed, which provides that “the possession and uses of said premises shall at all times remain in said grantors so long as payment shall be made promptly and in good faith by said grantors of said several bonds and coupons pertaining thereto as the same shall become due and payable.” The bill sets forth in substance, that all the bonds and coupons, legally issued by the plaintiffs, have been so paid, that certain bonds and coupons, subsequent to the date of the mortgage, have been illegally issued, and for which they are not legally liable, and consequently, have been justified in withholding payment.
And the bill further asserts, that the whole condition in
The equity powers conferred by statute upon this Court, are therein enumerated, beyond which to chancery, in this State, is all forbidden ground; which circumstance is not sufficiently considered by counsel in their arguments and citations from English and American decisions, pronounced by Courts of more enlarged equity jurisdiction.
What is really the subject matter of complaint in the plaintiffs’ bill ? It is, first, that the defendant has unlawfully taken possession of their property, and secondly, that he threatens to sell it, or in other words, of an illegal interference with their just and legal rights.
It is admitted, that the defendant has obtained possession, and the plaintiffs contend that such possession is wrongful. Let the inference be drawn, and how does the alleged wrongful conversion differ from any other trespass or tort, for which the offerer has a complete and ample remedy at law ?
It is further admitted, that the defendant proposes to sell, and in his advertisement has signified his determination to convey the mortgaged property, “ to the full extent of the powers derived to or by him under and by virtue of said deed and not otherwise." Suppose the defendant should exe
The plaintiffs’ allegations, therefore, do not disclose to us any such unjustifiable interference with their rights, as to authorize us as a Court of Equity, at present, to interfere. Consequently the demurrer is sustained and the injunction dissolved.