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DUNHAM V. CINCINNATI, PERU &C. RY. CO., 68 U. S. 254 (1863)

U.S. Supreme Court

Dunham v. Cincinnati, Peru &c. Ry. Co., 68 U.S. 1 Wall. 254 254 (1863)

Dunham v. Cincinnati, Peru &c. Railway Company

68 U.S. (1 Wall.) 254


1. A mortgage by a railway company of their "road, built and to be built" -- the company, at the date of their mortgage, having built a part of their road, but not built the residue -- has precedence, even as regards the unbuilt part of the claim of a contractor who, in the inability of the company to finish the road, had himself finished it under an agreement that he should retain possession of the road and apply its earnings to the liquidation of the debt due him, and who had never surrendered possession of the road to the company. DAVIS, J., dissenting.

2. Where a mortgage given by a railway company to secure a number of bonds provides that in case of a sale or other proceedings to coerce payment of interest or principal, all bonds and the interest accrued shall be a lien in common therewith, and the interest accrued thereon shall be equally due and payable, and entitled to a pro rata dividend of the proceeds of sale -- with this superadded declaration, however, to-wit, "but in no case shall the principal of any bond be considered as due until twenty years from the date thereof" (this being the term which the bonds on their faces had to run) -- it is error, after a sale under the mortgage, within the twenty years, to give precedence to the overdue interest warrants. The superadded clause will be interpreted only as excluding an inference that a bondholder might bring an action for the principal before it became due by its terms.

This was an appeal from a decree of the Circuit Court of the United States for the District of Indiana, made in a case

Page 68 U. S. 255

in which Dunham was complainant and the Cincinnati, Peru & Chicago Railway Company, with one Walker, a builder of the road, and Ludlow, his assignee, under the insolvent laws of the state, were defendants. The facts were these:

The appellant, Dunham, on the 18th of April, 1860, filed his bill in the court below to foreclose a mortgage given to him as trustee by the said railway company to secure the payment of certain bonds therein described. The respondent corporation was organized under a general law of the State of Indiana for the incorporation of railroad companies, * one section of which provides that

"Such company may from time to time borrow such sums of money as they may deem necessary for completing or operating their railroad, and issue and dispose of their bonds, for amount so borrowed, for such sums and such rate of interest as is allowed by the laws of the state where such contract is made, and mortgage their corporate property and franchises to secure the payment of any debt contracted by such company."

They were authorized by their charter to construct a railroad from Laporte in that state, by the way of Plymouth &c. to Marion in the same state. The whole length of the railroad, as contemplated, was about ninety-seven miles, and for the purpose of constructing, completing, and equipping the entire route the directors resolved to raise money by loans to an amount not exceeding $1,000,000, and to issue the bonds of the company, not exceeding one thousand in number, for the sum of $1,000 each, payable in twenty years from date, and bearing interest not exceeding seven percent per annum. They also decided to construct the road by sections, and with that view divided the route into four parts, designated and numbered as sections one, two, three, and four. Section one extended from Laporte to Plymouth, a distance of about twenty-eight and a half miles: this was the only one that was built, and is the one which constitutes the subject matter of the controversy in this suit. Intending

Page 68 U. S. 256

to construct the road in sections, they apportioned the loan and the bonds to be issued upon the several sections. Three hundred thousand dollars were apportioned to the first section, and the residue to the three other sections. Having arranged these preliminaries, they resolved to mortgage the road to secure the payment of the interest accruing on the bonds, and for the ultimate discharge of the principal. The complainant was appointed trustee for the purpose of such a conveyance, and on the 20th of February, 1855, a mortgage was made to him as such trustee, his successors and assigns, of the following property of the company -- that is to say, "their road built, and to be built,"

"including the right of way, and the land occupied thereby, together with the superstructures and tracks thereon, and all bridges, viaducts, culverts, fences, depot grounds and buildings thereon, and all other appurtenances belonging thereto, and all franchises, rights, and privileges of the company to the same."

Pursuant to the previous determination of the company, the proper officers thereof, on the 1st of March following, issued the three hundred bonds apportioned to the first section of the road, and which had been duly set apart for its construction and equipment. They were the only bonds ever issued under the first mortgage. The allegation of the bill of complaint was that the interest warrants had not been paid, and that the railway company had failed to furnish any means whatever for that purpose as stipulated between the parties. The bill also alleged that the company, on the 26th of February, 1855, made to the complainant, as such trustee, another mortgage of their railroad, to secure the payment of bonds proposed by them to be issued for another sum, not exceeding $1,000,000, for the same purpose. An apportionment of that sum also was made upon the different sections of the road in the same manner as was done under the first mortgage, but none of the bonds were issued, except those apportioned to the first section. The railway company did not appear, and as to them the complainant took a decree pro confesso. The defendants, Walker and Ludlow, appeared and filed separate answers. The defense of Walker was that the company being wholly

Page 68 U. S. 257

unable to complete the road, he, the respondent, on the 28th of November, 1855, entered into an agreement with them to complete the first section and furnish all the materials, and that the company agreed to pay him the full value of the materials so furnished, and a reasonable compensation for his services; that as part of the arrangement, the company engaged to deliver to him, from time to time, ninety-nine of the first mortgage bonds, and two hundred and ninety-nine of the second mortgage bonds, at $400 for each $1,000 bond, and that he, the contractor, was to have and keep possession and control of that section of the road and its earnings until the company should make full payment to him of what they should owe him under that agreement. The answer then averred that he expended for materials and labor in completing the contract, $302,000, and that the company, on the 8th of April, 1858, confessed a judgment in his favor for the balance due him under the contract, amounting to $129,491 43/100, which, as he insisted, was entitled to a preference in payment from the earnings and income of the road, and from the proceeds of the sale of the same over the first mortgage bonds.

The stipulations of the contract purported to give to the contractor the absolute control of the first section of the road and its earnings, from its opening until the company should make full payment for its construction, and the contractor was to disburse its earnings --

1st. To pay the expenses of operating the road.

2d. To reimburse himself for all the money which he might advance.

3d. To pay the interest on the first and second mortgage bonds, and if there was any surplus, to apply the same to the other objects therein specified.

The answer of the other respondent, Ludlow, set up the same defense.

The mortgage of the complainants had been duly registered, March 9, 1855, more than eight months before the contract was made with Walker and Ludlow.

The court below rendered a decree directing that the road should be sold, and that the proceeds, after the payment of

Page 68 U. S. 258

costs, should be paid over to Ludlow, as assignee of the contractor, to the exclusion of the trustee, and in preference to the mortgage on which the suit was founded.

The decree also ordered that coupons past due on the bonds should take precedence over the principal of the bonds; the ground of the decree being a clause in the mortgage held by the complainant as trustee, in these words:

"In case of default in the payment of interest or principal of any bonds, and a sale or other proceedings to coerce the same, all bonds which shall then be a lien in common therewith, and the interest accrued thereon, shall be considered, and shall in fact be equally due and payable, and entitled to a pro rata dividend of the proceeds of said sale or other proceedings; but in no case shall the principal of any bond be considered due until twenty years from the date thereof. "

Page 68 U. S. 265

From this decree, Dunham, a creditor under the mortgagee, appealed, and now sought to reverse the decree.

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