tage to the first mortgage, and may have been of advantage to the junior securities. It is difficult to escape the conclusion that the trustees, owners, and guardians of junior securities, unconsciously it may be, were influenced by their own personal interest, and were blinded as to the interest of their cestui que trust. Sale of road ordered. In the view which we take of the case, the further discussion of this question is unnecessary. The prayer of the cross bill of Walker et al., trustees, and that of Coghlan, are not resisted. They are entitled to their money. As the railroad property is a unit, and is valuable for this reason, it will not be advisable, were it possible, to sell a part of it to satisfy these claims. It is to the interest of all parties that if a sale be had it must be of the whole. If the sale be postponed, such postponement would be in the interest of the holders of a part of the first consolidated mortgage bonds, and against the wishes of the holders of all other securities and of the railway company. The experience of the past three years shows the exercise of great economy and ability by the receiver and his subordinates. With the exception of the current year, the business has been excellent. Yet all the earnings have been needed for the equipment of the road, and for keeping it in proper order and repair. The surplus has, from time to time, been applied to the interest on the oldest securities and the past due coupons of the first consolidated mortgage. The interest on all these securities is in default one year. No interest whatever has been paid upon the junior securities. It is true that the money expended upon the road has made the whole property much more valuable, and to this extent all the securities are benefited. But primarily the senior securities enjoy the benefit of these expenditures. And it would be inequitable to deprive the junior securities of any advantage which might be derived from an enhanced price at a sale, and a recovery of a part at least of their principal. A postponement of the sale, therefore, may do no good to any but a class of the secured creditors, and may be a great injury to every other class. Where there are two classes of creditors before the court, one of which is safe at all events, and the safety of the other is doubtful, the latter class are entitled to the consideration and care of the court. All parties in interest are before us. A decree will be passed for the sale of all the property covered by the several liens and mortgages ascertained and mentioned, in which provision shall be made declaring all first consolidated mortgage bonds entitled to payment as if past due, which decree shall provide for a sufficient cash payment to meet the costs and expenses of the case, and to liquidate the obligations of the receiver which have been entered into with the sanction of the court. BOND, Circuit Judge, concurs. Railroad Mortgage Bond-Indorsement-Right of Indorser to Foreclose Mortgage before Maturity Coupons.-In Pennsylvania R. Co. v. Allegheny Valley R. Co., 48 Fed. Rep. 139, the Allegheny Company negotiated its coupon bonds secured by a mortgage on its road, each bond being indorsed by the Pennsylvania Company, the indorser binding itself to purchase at maturity the bonds and each interest coupon at par "and when so purchased each and all of said bonds and coupons are to be held by the said company with the rights thereby given and with all the benefit of every security thereof." The Pennsylvania Company having been obliged to purchase coupons, filed a bill before maturity of the bonds to foreclose the mortgage. It was held that such a construction must be adopted as would preserve to the bondholders their mortgage lien and that Pennsylvania Company could have no right to deprive them of it until it had fully performed its obligations as set forth in its indorsement; and that in the meantime its remedies upon the purchase coupons must be so exercised as not to impair the bondholder's security. Same-Sale of Road for Debt-When Ordered Preservation of Lien of Unmatured Debt.-Where the equities of all the parties in interest will be best subserved by a sale of the road subject to the lien of the mortgage as to the principal of the bonds thereby secured and the interest payable after the making of the sale, the sale will be decreed but equity has power in such case to so mold its decree as to order the sale of the mortgaged property to satisfy that part of the debt which is due, and still preserve the lien upon the mortgaged premises in the hands of the purchaser as to the uninatured part of the debt. Pennsylvania R. Co. v. Allegheny Valley R. Co., 48 Fed. Rep. 139. MAYER υ. FORT WAYNE, CINCINNATI & LOUISVILLE R. Co. (Indiana Supreme Court, June 15, 1892.) Sale of Railroad Under Foreclosure-Liability of New Company for Debts of Old Company. Where the plaintiff contracts to construct a station for a railroad company, and after completion the road is sold under a mortgage foreclosure sale and bought in by the bondholders who organized a new corporation to own and operate it, such corporation is not liable to the plaintiff for the amount due on the contract, although it takes possession of and uses the station. Nor would the mere fact that the bondholders of the original company agreed that a certain sum should be set aside to pay sundry claims, create a liability on the part of the new company. Same-Averments as to the Identity of Old and New Companies.-A general averment that defendant is the same corporation as the one which entered into the contract, gives way to specific averments which show that defendant is a new corporation, organized by the purchasers at the foreclosure sale. APPEAL from Wayne Circuit Court. U. D. Cole, and Fox & Robbins, for appellant. Case stated. ELLIOTT, J.—The appellant alleges in his complaint that the appellee is a railway corporation organized under the laws of this state; that it is the same corporation, under a different name and holding the same. property, as the Ft. Wayne, Muncie & Cincinnati Railroad Company; that the company last named executed a mortgage on the 9th day of June, 1889, to Alfred P. Edgerton and Jesse S. Williams, trustees, to secure the payment of $1,800,000, covering all the property of the company; that this mortgage was subsequently foreclosed, and a sale of the property made upon the decree; that the purchasers of the property were bondholders and reorganized the company; that prior to the reorganization of the company by the purchasers at the foreclosure sale, the appellant entered into a contract with the Ft. Wayne, Muncie & Cincinnati Railroad Company and the Cincinnati, Hamilton & Indianapolis Railroad Company for the construction of a joint passenger station at the junction of the two roads at Connersville; that by the terms of the agreement the appellant was to receive from each of the companies $750, and was himself to pay $1,000 towards the construction of the station; that he performed his part. of the agreement, and erected the building provided by the contract; that the building was accepted by the companies, and they entered into possession of it on the 1st day of September, 1874; that neither the appellee nor its predecessor has paid the sum agreed upon, nor any part thereof. It is alleged; in general terms, that the sum of $150,000 was set aside to pay sundry claims, and that the claim of the appellant was among those so provided for, but there is no allegation, directly or indirectly, showing by whom the sum named was set apart. The written contract made part of the complaint was executed between the persons holding the bonds which the mortgage was executed to secure, and it provides that the sum named shall be "retained by the company, which may be used by the board of directors in settlement of the claim of the Liverpool & London & Globe Insurance Company, and for other small claims, so far as may be re quired." It is a familiar rule of pleading that specific averments Averments as to identity of old and new companies. control general ones. Reynolds v. Copeland, 71 Ind. 422; See cases cited in Elliott App. Proc. § 656, p. 588, note I. The general averment that the appellee is the same corporation as the one that entered into the contract with the appellant gives way to the specific averments, which show that the appellee is a new corporation, organized by the purchasers at the foreclosure sale. There can therefore be no recovery upon the theory that the corporation here sued is the same as the one with which the appellants contracted. contract. The provision in the contract between the bondholders, which we have quoted, does not bind the appellee to pay the appellant any sum whatever. It simply authorNew company izes the directors to use that sum as they may not liable on deem necessary in payment of claims. But, if it were conceded that the provision does create an obligation in favor of the appellant, still there is no right to recover upon it, because it does not appear that the sum was not properly used to pay the claim specified, or other claims having rightful precedence of the appellants' claim. We understand counsel, however, to place their right to a recovery mainly upon the ground that the facts show an equitable claim. Their contention is that, as the new company used the building erected by their client, it must pay the debt of its predecessor. This contention cannot prevail. The old company was the debtor of the appellant, but the new did not become liable for that debt. A corporation formed by bondholders, who purchase at a sale upon a decree foreclosing the mortgage securing their bonds, does not become liable for the debts of the mortgagor. It is assumed by counsel that the appellee is liable in equity because it took possession of the appellant's property. But this presumption is one that cannot be supported. There is nothing in the complaint showing that the appellant owned the station. On the contrary, the facts stated show simply that the corporation with whom the appellant contracted promised to pay him a designated sum of money, and for that sum became his debtor. The cases of Lake Erie & W. R. Co. v. Griffin, 107 Ind. 464, 27 Am. & Eng. R. Cas. 394; Bloomfield R. Co. v. Grace, 112 Ind. 128, and cases of like character,-are not in point, for in those cases possession of the complainant's property was taken and held by the railroad company. This case is in no respect different from that wherein one man agrees to build a house for another, for which the other promises to pay a given sum, and a third person becomes the owner of the house by purchase at a sale made upon a decree foreclosing a prior mortgage. In the case supposed we think it beyond contro versy that the purchaser could not be held for the debt of the mortgagor to the builder of the house, and the principle which rules the supposed case must determine the actual one. As the appellant has no cause of action the judgment must be affirmed, upon the assignment of cross See authorities cited in Elliott, App. Proc. §§ 417, 418. Judgment affirmed. errors. Foreclosure of Railroad Mortgage-Liability of Purchaser for Debts of Old Company. See notes, 30 Am. & Eng. R. Cas. 155; 17 Am. & Eng. R. Cas. 242; 44 Id. 72. - Same-Liability of Purchasers for Claims Accrued Prior to Purchase-Special Limitation.-A decree of foreclosure and sale made under a railroad mortgage provided that the purchaser should pay off all claims incurred by the receiver and that all such claims shall be barred unless presented six months after the confirmation of the sale. The decree confirming the sale provided that a deed should be given and the purchasers should take the property, the deed to recite that they took it subject to all claims incurred by the receiver; no objection was ever made by the purchasers to the terms of the decree. More than six months after the confirmation a party filed a claim for damages for an injury caused by the negligence of one of the receiver's employes. The purchasers set up in defense the six months limitation. Held, that the defense could not be made; the court had discretion to abrogate the six months limitation, and, as the receiver had been discharged, to decree that the purchasers should pay the amount of the claim. Olcott v. Headrick, 141 Ü. S. 543. Same State and Federal Courts "Successor."-While a railroad was in the hands of a receiver appointed by a federal court, a decree was made by the supreme court of the state compelling the company "its successors, assigns, grantees and lessees" to operate a certain part of the road. Afterwards the mortgage on the road was foreclosed by decree of the federal court and at the sale thereunder was purchased by a corporation which conveyed to the defendant. Upon an application for an order against defendant to show cause why the decree of the state court should not be enforced against it, it admitted the facts as stated but denied that it was "the successor, assign, grantee or lessee" of the original company. Held, that this defense could not avail; the defendant was a successor of the company against which the decree was rendered. Nor could the defendcompany defend on the ground that it had leased the line in question to another road and that if the decree were enforced a rental of $14,000 a year will be lost to it. State v. Iowa Cent. R. Co., (Iowa Oct. 16, 1891) 50 N. W. Rep. 280. ant Foreclosure of Mortgage Right of Vendor of Rolling Stock Where its Value has Increased Since the Sale.-In a suit to foreclose a railroad mortgage in which an intervenor claimed title to certain rolling stock as vendor under conditional sale, the evidence showed that the value of rolling stock | had increased 10 per cent. since the time when furnished by the inter-¡ venor. Held, that in determining the sum which the receiver in the suit should pay in order to retain possession of the rolling stock, 10 per cent.] should be added to the cost thereof, before deducting the annual percentage for wear and tear. Central Trust Co. v. Marietta, etc., R. Co., 48 Fed. Rep. 875. Same-Right of Insolvent Defendant Company to Have Payments Out of its Assets Made to its Attorney and Secretary. In a suit to foreclose a mortgage of a railroad it appeared that the company was insolvent, its |