Wood v. Goodwin , 49 Me. 260 ( 1861 )

The opinion of the Court was drawn up by

Davis, J.

This is a bill in equity, to redeem the Great Falls and South Berwick Railroad from a mortgage to the defendants, in trust, to secure the payment of certain bonds. The mortgage was given Sept. 1, 1854. After the bonds first payable became due, the defendants, as trustees, took possession of the railroad for condition broken. The right of redemption was afterwards sold by the plaintiff, upon an execution in his favor against the railroad company; and, having purchased the right of redemption himself, he demanded an account of the trustees under the mortgage, which they neglected to render.

If the special Acts of Maine and New Hampshire, passed in 1848, had been duly accepted by the Groat Falls and Conway Railroad Company, and the Great Falls and South Berwick Railroad Company, those two companies would have been merged in the new one, by the name of the Portsmouth, Great Falls and Conway Railroad Company. In that case, there would be no valid mortgage and no equity of redemption. But, as neither of the special Acts appears to have been accepted according to its terms, we may assume that the Great Falls and South Berwick Railroad Company continued to exist, and that the mortgage is valid. Nor do we perceive any reason why the plaintiff, upon the case as stated and proved, is not entitled to redeem.

A part of the railroad is within this State, and the other part in New Hampshire. Whether there were two distinct corporations, or one only, under the charters granted by the two Legislatures, there was but one mortgage, and that embraced the whole railroad. The plaintiff proceeded upon the assumption that the mortgage was valid. lie cannot deny it. He has no claim, if it was not. And the mortgage embracing the whole railroad, both in this State and in New Hampshire, the plaintiff must redeem the whole, if any. And, in order to do so, he must provide for the whole debt secured by it. For the mortgagees have a lien upon every part of the railroad to secure every part of the debt.

A part of the bonds secured by the mortgage are due; the rest have not yet matured. The trustees have taken possession. It is contended for the plaintiff, that he may pay up the amount now due, and be entitled to take possession, and hold it, until the condition shall again be broken by a non-payment of the bonds next maturing. But this is not the case. The trustees having taken possession for condition broken, are entitled, under the mortgage, to retain possession until the whole debt is adequately provided for, without requiring’them to rely upon the mortgage. So long as any necessity appears for them to rely upon this security, they are entitled to possession. The plaintiff will not be permitted to eject them, without paying all that is due, and depositing money, or otherwise providing, for the payment of the remainder as it shall become due.

But the plaintiff, by paying all that is now due, will save a forfeiture. He will thus be placed in the position of the mortgagers; and the right of redemption will not be foreclosed. The trustees will 'be entitled to possession, and must account for the earnings. And, if the plaintiff shall pay them enough, with the earnings, to discharge all the bonds, as they become due, he will then be entitled to possession.

Whether the necessary proceedings have been had to give the plaintiff title to that part of the railroad lying in New Hampshire, is a question which the Court in this State have no power, in this case, to determine.

A master may be appointed to determine the amount now due and payable, after deducting the earnings of the railroad since the defendants took possession.

Tenney, C. J., Appleton, Cutting, May and Goodenow, JJ., concurred.