McFadden v. Mays Landing and Egg Harbor City R. R. Co. law shall be enforced, no matter what motive may have prompted his purchase. This principle is recognized by the chief-justice, in the case of Davis v. Flagg, 8 Stew. Eq. 491, and (at p. 495) he quotes with approval from Morris v. Tuthill, 72 N. Y. 575, as follows: "The motives of the former owner of the mortgages in selling or the plaintiffs in buying them are not material. The appellant has no concern with the consideration of the assignment. It is sufficient that the mortgage debt is due, and is now owned by the plaintiff. He may have bought the mortgages from motives of malice toward the defendant, and solely with a view to sue upon them, and the former owner, from a like motive, may have transferred them without consideration, but this would not constitute a defence to the action. The appellant can only arrest the action by paying the amount due or tendering the same and bringing it into court." The complainant must be held to be the owner of the bonds. in his own right, and having duly presented the coupons for payment and payment being refused, and having applied to the surviving trustee to take proceedings to collect what is due, and the trustee having refused to take any action whatever, is entitled to any remedy which the court furnishes to secure his rights. The right of the mortgagee to foreclose for overdue interest is clearly established, and it is now well settled that the holder of bonds secured by a mortgage given to trustees may, on refusal of the trustees so to do, institute proceedings to foreclose for the unpaid interest. In Chicago and Vincennes R. R. Co. v. Fosdick, 106 U. S. 47, Justice Matthews (at p. 68) says: "Inasmuch as by the terms of the first article the conveyance is declared to be for the purpose of securing the payment of the interest as well as the principal of the bonds, and by the fourth article the mortgagor's right or possession terminates upon a default in the payment of interest as well as principal, on any of the bonds, we are of opinion that, independently of the provisions of the other articles, the trustees, or, on their failure to do so, any bondholder, on the non-payment of any installment of interest on the bond, McFadden v. Mays Landing and Egg Harbor City R. R. Co. might file a bill for the enforcement of the security, by the foreclosure of the mortgage and sale of the mortgaged property. This right belongs to each bondholder separately, and its exercise is not dependent upon the co-operation or consent of any others, or of the trustees. It is properly and strictly enforceable by and in the name of the latter, but if necessary may be prosecuted without or even against them. It follows from the nature of the security, and arises upon its face, unless restrained by its terms." Galveston R. R. Co. v. Cowdery, 11 Wall. 459; Hotel Co. v. Wade, 97 U. S. 13; Alexander v. Central R. R. Co. of Iowa, 3 Dill. 487; Brooks v. Vermont Central R. R. Co., 14 Batchf. 463; Mercantile Trust Co. v. Lamoille R. R. Co., 16 Blatchf. 324; Wilmer v. R. R. Co., 2 Wood 447. Such a suit ordinarily would be in behalf of the complainant and other bondholders, but in the present instance it appears that the interest on bonds, other than those of complainant, has been paid. The bill in this suit is filed on the theory that the principal as well as the interest has become due. By its terms, the mortgage is not due until the year 1900, but the bill charges that— "the interest not having been paid, and remaining unpaid for a period of more than six months, that by virtue of the covenants and the terms and conditions in said mortgage contained, the principal sums and all interest thereon has become due, payable and collectible, and said mortgage, and the estate thereby granted, has become absolute;" and it prays that the defendants may be decreed to pay the principal as well as the interest on the bonds. This mortgage does not contain a provision which is common in railroad mortgages, that on default in the payment of interest and continuation thereof for a certain time, the principal should become due either absolutely or at the option of the trustees. The court can only require the performance of the agreement of the parties, and cannot impose new terms. It can enforce the payment of a debt only according to the terms of the contract. If no clause accelerating the maturity of the debt is inserted the court cannot engraft one on the contract, and where one exists its McFadden v. Mays Landing and Egg Harbor City R. R. Co. provisions must be strictly followed. In Randolph v. Middleton, 11 C. E. Gr. 546, the contract provided that in cases of a default in the payment of interest for a certain length of timethe principal should, at the election of the trustees, become immediately due and payable. There was nothing in the case to show that the trustees had exercised their right of election, and the court held that the principal money was not due until that election had been made. See, also, Howell v. Railroad Co., 94 U. S. 463. In Ohio Central Railroad Co. v. Central Trust Co., 133 U. S. 83, the decree, which was in effect for a deficiency, was opened as being erroneous in this, that it included the amount of principal which was not by the terms of the mortgage due. It is claimed, however, that the principal must be considered as due from the provisions of the mortgage conferring upon the trustee certain powers in case of default in payments. These provisions are substantially-first, that in case of a default in the payment of interest continuing for three months, or, second, in case of default in the performance of any other covenant continuing for a period of six months, the trustees may take possession of the road and operate it, and from the proceeds pay the expenses, repairs and interest on the bonds and any principal which may then be due and the balance to the railroad company. Third, as follows: "In case default shall be made as aforesaid, and shall continue for the period of six months as aforesaid, it shall likewise be lawful for the said trustees or their heirs &c., after entry as aforesaid, or other entry, or without entry, personally or by their attorneys or agents, to sell and dispose of all and singular the railroads, lands, personal property and premises hereby conveyed, or intended so to be, at public auction in such way, on such terms, at such times and at such places as they shall deem best for the holders of said bonds, first giving 'certain prescribed notice thereof,' and shall apply the whole net proceeds of any and all such sales, from time to time, as realized, to the payment, in the first place, of all interest in arrears on said bonds, respectively, in full, and, in the second place, to the payment and discharge of the principal of said bonds in full if the residue be sufficient for that purpose, but if not, then to distribute and appropriate the same to and among the holders of the said bonds in the ratio of the principal sum of the bonds held by them, respectively, without priority or preference, retaining, however, always, somuch of the net proceeds as may be sufficient to meet the expense of this trust, and to indemnify the said party of the second part, their heirs &c., for McFadden v. Mays Landing and Egg Harbor City R. R. Co. or against any liabilities or loss or damage that shall or may occur to them in the execution of this trust, and if there should be any surplus after paying the whole of the principal and interest of the said bonds, and retaining sufficient for such indemnity, then the said party of the second part, their heirs &c., shall pay the same to the said party of the first part, their successors and assigns, and shall reconvey and assign all or any part of the premises hereby conveyed and assigned and not sold and disposed of as aforesaid." There is, of course, nothing in these articles which, in express words, matures the principal debt for default in the payment of interest for six months, but it is argued that such result must be implied from the fact that the trustee is, by the third article, authorized to sell all the mortgaged property and make payment of the principal. This is, however, substituting the effect for the cause. He does not sell the whole of it because the debt is all due he sells the whole because the mortgage authorizes him so to do, and pays the principal because he has disposed of all the security. In Holden v. Gilbert, 7 Paige 208, Chancellor Walworth (at p. 210) says: "The provision in the power of sale, giving the right to advertise and sell after a default for thirty days in paying the installments and interest, and the authority, in case of such sale, to retain the whole principal and interest due and to become due, do not change the construction of the mortgage as to the time when the payments are to become payable, so as to authorize a suit upon the bond or a foreclosure of the mortgage in equity." Olcalt v. Bynum, 17 Wall. 44; C. & V. R. R. Co. v. Fosdick, supra. It is further argued that the trustee having refused to execute the powers conferred on him, and the complainant being entitled on such refusal to bring suit, he stands in the shoes of the trustee, and the court will exercise the powers named in the contract. This invokes a consideration of the character and effect of such powers. There are in this mortgage, as there are usually in such instruments, powers of sequestration and of sale. These are recognized remedial incidents of equity jurisdiction, further enforced in this state by section 64 of the Chancery act. Rev. p. 115. McFadden v. Mays Landing and Egg Harbor City R. R. Co. They are powers which, of course, could not be assumed by a trustee unless authorized by contract or by statute, but which the court exercises as part of its established jurisdiction and procedure, and which remain unaffected by the contract powers of the trustee. Judge Curtis, in Hall v. Sullivan R. R. Co., 2 Redf. Railw. 517 (at p. 520, note), says: "Without undertaking to say that the parties may not restrict the right of foreclosure, I consider it clear that the insertion of a power of sale in a deed of mortgage neither deprives the mortgagee of his right of strict. foreclosure, when such right would otherwise exist, nor prevents a court of equity from foreclosing by a sale made under its direction, in cases where it finds a strict foreclosure is not a matter of absolute right on the part of the mortgagee, and a strict foreclosure would be inequitable. "In Guaranty Trust Co. v. Green Cove R. R. Co., 139 U. S. 137, it is held that a provision in the deed of trust, to the effect that neither the whole nor any part of the premises mortgaged shall be sold, under proceedings either at law or equity, for the recovery of the principal or interest of the bonds, it being the intention and agreement of the parties that the mode of sale provided by the mortgage shall be exclusive of all others' is open to the objection of attempting to provide against a remedy in the ordinary course of judicial proceedings, and oust the jurisdiction of the courts, which, as is settled by the uniform consent of authority, cannot be done." The proceedings provided in the mortgage are, therefore, regarded as cumulative remedies. Howell v. R. R. Co., 94 U. S. 466; R. R. Co. v. Fosdick, 106 U. S. 47; Alexander v. R. R. Co., 3 Dill. 487; F. L. & R. R. Co, v. R. R. Co., 27 Fed. Rep. 147; Beckman v. R. R. Co., 35 Fed. Rep. 3; Merchants' Trust v. R. R. Co., 36 Fed. Rep. 221; Morgan Co. v. R. R. Co., 137 U. S. 171. They are powers reposed in the trustees, often in the alternative, the selection resting in discretion, which can be exercised by them, without the aid of the court, only on the happening of the conditions prescribed. The trustee, if he encounters or anticipates interference in executing the powers conferred, on a proper case being presented, can have the aid of |