Conover v. Brown,

court of equity will supply a defective execution of powers as well in the case of younger children and a provision for a wife as in favor of purchasers or creditors."

It is true that the exercise of this jurisdiction of a court of equity has been generally confined to cases of the defective execution of a power, or to supply the surrender of a copyhold estate; but where that power has been exercised upon the sole consideration of the parental duty to provide for a child, the principle upon which the court has acted has been that the duty which the parent has to provide for his child is a sufficient consideration, or, as it has been termed, a "meritorious" consideration, which a court of equity recognizes as good as distinguished from valuable; and I am unable to perceive any reason why this underlying principle should not be applied in the case of a sealed bill or bond given to a child.

In the numerous cases found in the books where the courts have supplied the defective execution of powers, the question always has been whether the intent on the part of the donee of the power to execute it was sufficiently manifested in writing. Here the intent of Stephen Brown to make an effective gift to his daughter of $1,000, by means of a sealed bill, is thoroughly shown by his own handwriting, and all the circumstances necessary to call into exercise the jurisdiction of the court are present. The testator had five daughters, and, for reasons satisfactory to himself, he thought fit to make to each a present of $1,000 over and above the amount which they were to receive under his will. He executed and delivered to each a writing, which would enable each to receive that sum of money from his executors. He died without having changed his mind with regard to it. The validity of these writings has been recognized by the executors in the case of each of the daughters except Anne Conover, and the money has either been paid or secured to each of them. Equity requires that Anne Conover should receive the same treatment. In fact, no defence was made to the note on the ground that it was not sealed, but it was put on the ground, which I have already disposed of, that it was not to be delivered to her, unless she gave up the McCord bond and mortgage. The real ground

Conover v. Brown.

upon which the sisters, Sarah and Julia, who were sworn on the part of the defence, put the case, was that Mrs. Conover had, in her lifetime and after the death of her father, frequently declared to them that she did not wish any of her estate to go to her husband, but wished it to go back to the estate, and these witnesses manifested a strong feeling on the subject. But this court cannot take notice of such declarations of Mrs. Conover. In point of fact, she never exercised her right to make a will, and it may well be doubted whether those wishes so expressed to her sisters were those of her death-bed.

The supplying the want of a seal in ordinary cases is a very common exercise of the jurisdiction of the court. Wadsworth v. Wendell, 5 Johns. Ch. 224; The Inhabitants of Montville v. Haughton, 7 Conn. 543; The Inhabitants of the Township of Bernards v. Stebbins, 109 U. S. 341.

For these reasons, I conclude that the $1,000 note must be treated in all respects as if the maker had actually affixed a seal or a scroll thereto, and that the complainant is entitled, as to it, to relief accordingly.

The prayer of the bill is that the executors may deliver over to the complainant the $2,210 mortgage, and that the defendants may be decreed to pay to the complainant the amount due on any promissory notes or sealed bills, with the usual prayer for other relief. I think that the simple way to administer the complainant's equity is to apply the amount due on the two promissory notes to the amount due on the mortgage.

By a statement made up at the interview of December 25th, 1886, and put in evidence, it appears that there had been $374.30 paid on account of interest on the mortgage. There was no contention that anything had been paid on account of the two notes. After giving credit for $374.30 as payment of interest on account of the mortgage, I make the amount due on it, on December 25th, 1886, as $2,805.24, and as due on the two notes, $2,863, which would leave a balance due to the complainant of $57.76. If these data are correct, complainant is entitled to a decree for that amount, with interest from December 26th, 1886, and that the mortgage be delivered up and canceled of record.

McFadden v. Mays Landing and Egg Harbor City R. R. Co.

CHARLES MCFADDEN

v.

THE MAYS LANDING AND EGG HARBOR CITY RAILROAD
COMPANY et al.

1. The holder of any one of a series of bonds secured by a mortgage made to trustees, may, on refusal of the trustees so to do, maintain a suit for the foreclosure of the mortgage, for default in the payment of interest.

2. Such suit ordinarily should be brought by the bondholder in behalf of himself and all other bondholders, but an averment to this effect is unnecessary when default has been made only on the bonds held by complainant.

3. Powers given, by the terms of the mortgage, to the trustee after default for a stated period in the payment of interest, to take possession of the mortgaged property and sell the same, and apply the proceeds to the payment of interest and principal, do not change the construction of the mortgage, as to the time when the principal becomes due, so as to authorize a foreclosure for the principal as well as interest.

4. Powers of sequestration and sale, given to the trustee, are cumulative remedies, which do not affect the established remedies of the courts-when a bondholder, on refusal of the trustee to act, prosecutes a suit in his own name, for the payment of overdue interest, by the foreclosure of the mortgage, he is restricted to the usual remedies of the court appropriate to that purpose.

5. On foreclosure for unpaid interest, the principal not being due, only so much of the property as may be necessary to raise the amount due should be sold, if the property is divisible without material injury to the security.

6. Unless it appears to the contrary, the court will assume that the entire plant of a railroad, embracing its real and personal estate and franchises, is an entirety, the elements of which are so essentially intermingled, and each so indispensable to the value of the other, that they cannot be separated without material injury to the value of each.

On final hearing on pleadings and proofs,

Mr. Peter L. Voorhees and Mr. William S. Gummere, for the complainant.

Mr. Martin P. Grey and Mr. Samuel H. Grey, for the defendant railroad company.

McFadden r. Mays Landing and Egg Harbor City R. R. Co.

GREEN, V. C.

This suit is to foreclose a railroad mortgage. The complainant alleges that he is the owner and holder of nineteen bonds of $500 each of the Mays Landing and Egg Harbor City Railroad Company, on which there has been default in the payment of the semi-annual interest since the 1st day of October, 1883. These bonds are part of a series of seventy-five bonds, each of $500, numbered consecutively from one to seventy-five, amounting in the aggregate to $37,500, and payable October 1st, 1900, with interest at the rate of seven per cent. per annum, payable half yearly, on the 1st days of April and October in each year, on presentation and delivery of the proper coupon thereto annexed, at the office of the Camden and Atlantic Railroad Company, in Camden. A mortgage, dated October 1st, 1871, was executed by the said company, party of the first part, to John H. Doughty and Israel S. Adams, trustees, party of the second part, by its terms "to secure the payment of the principal and interest of the said bonds, according to the tenor thereof, and of the coupons thereto annexed," and embracing in the words thereof

"all and singular the railroad, the party of the first part is, by law, authorized to construct, from the town of Mays Landing to the city of Egg Harbor City, in the county of Atlantic, including all the railway branches, ways, rights of way, all tracks, bridges, viaducts, culverts, fences, depots, station-houses, engine-houses, car-houses, freight-houses, wood-houses, water stations, machine shops and all other buildings and structures with the lands appurtenant to the same, and all locomotives, tenders, cars and other rolling stock or equipments, and all machinery, tools, implements, fuel, materials and all other personal property of every nature, kind and description whatsoever, now held or hereafter to be held or acquired by said company, its successors or assigns, for use in connection with the railroads or branches of said company or any part thereof, or for the business of the same, and also all franchises connected with or relating to the said railroad or branches, or to the construction, maintenance or use of the said railroad or branches, and all the franchises, rights and things of whatsoever name or nature, now held or hereafter to be acquired, by the said party of the first part, or its successors, together with all and singular the tenements, hereditaments and appurtenances to the said railroad, branches, lands and premises or either thereof belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, tolls, incomes, revenues, rents, issues and profits and also all the estate, right, title, interest,

McFadden 2. Mays Landing and Egg Harbor City R. R. Co.

property, possession, claim and demand whatsoever, as well in law as in equity, of the said railroad company of, in and to the same and any and every part thereof with the appurtenances, to have and to hold the said above mentioned and described railroad, branches, real estate, personal property and premises with the appurtenances unto the said party of the second part, their heirs, executors, administrators, successors and assigns to their only proper use, benefit and behoof in trust."

First. Until default in the payment of principal or interest, or some other requirement, the company or its assigns to be permitted the possession of the property.

Second. In case default should be made in the payment of any interest, when it became payable, and such default continued for three months, or in case default was made in the performance of any other covenant, and should continue for a period of six months, it should be lawful for the trustees, upon the written request of the holder or holders of ten bonds, to take possession of the mortgaged property and operate the road, and, after deducting expenses, to apply the balance, first, to the payment of interest, next to payment of principal so far as due, and pay the residue to the company.

Third. In case of either of said defaults made, and continuing for six months, the trustees also to have power of sale under conditions specified.

The defeasance was on condition that the said company

"shall and do well and truly pay, or cause to be paid, to the several and respective holders of said bonds, the principal and interest thereof, on the several days and times therein appointed for the payment thereof, according to the intent thereof, on the several days and times therein appointed for the payment thereof, according to the intent and meaning thereof, without any fraud or further delay" &c.

The bill alleges that demand was made by the holder of the coupons of the bonds in question for the payment of the interest falling due October 1st, 1883, and thereafter semi-annually as the same fell due, to and including October 1st, 1885, and default was made in said payment, and that none of the said semi-annual payments of interest have been since made, and that each and