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Opinion of the court.

answers of the stockholders, Rockwell and Fleming, and have endeavored to separate the irrelevant matter from that which bore upon the merits, so as to confine the examination to the latter, namely, to the charges against the validity of the bonds impeached, of the number of some three hundred and eighty, in the hands, or which passed into the hands of several individuals named, and have shown, as we think, by a reference to the proofs, that these charges are not well founded. The general and sweeping allegations against the other portion of the bonds, without specification or identity, we have not specially noticed. These charges are too general to be entitled to consideration, and the proofs relied on are as general and indefinite as the allegations.

We have also shown that the judgment creditors who appeared and answered have no interest in the matters in controversy; and, lastly, that the charges of a fraudulent collusion between the trustees and Chamberlain rest upon suspicion instead of upon proofs.

We now come to a branch of the case which presents a more conclusive answer to all the charges, whether in allegations or in proofs of the respondents, and overrides all other views that may or can be taken of them.

As we have seen, this third mortgage, under which the Milwaukie and Minnesota Company was formed, was executed and delivered to Barnes, the trustee, on the 22d June, 1858, to secure the payment of an issue of $2,000,000 in bonds, and a supplement to this mortgage was executed to the same trustee, on the 11th August following.

These two mortgages, or rather one in two parts, were, in express terms, made subject, among other incumbrances mentioned, to the bonds secured by a second mortgage on the Eastern Division of the road, to the amount of one million of dollars.

Again, the bonds issued under this third mortgage, one of which is in the proofs, have an indorsement on the back, as follows: "State of Wisconsin, La Crosse and Milwaukie Railroad Company, third mortgage sinking fund bond, seven per cent.,

Opinion of the court.

fc.," subject, among other things, "to a second mortgage on the same line of road of $1,000,000."

At the time this third mortgage was executed, and thus made subject to the second mortgage bonds, all these bonds had been negotiated by the company, and were in circulatior in the business community. They were all negotiated in the months of September, October, November, and December, 1857. This, the company, of course, well knew at the time of the execution of the third mortgage, and knew, also, of the circumstances attending the negotiation of them. They had received and were in the enjoyment of the avails of them, and with this knowledge, and under these circumstances, the third mortgage, and the bonds issued under it, were made in express terms subject to the payment and satisfaction of the bonds issued under the second. All persons, therefore, taking these third mortgage bonds, or coming in under the mortgage, took them and came in with a full knowledge that the mortgagor had made the security subject to the prior lien and indebtedness. Even if there had been any valid objection to these bonds under the second mortgage, it was competent for the obligor to waive them, and no better proof could be furnished of the waiver, than the acknowledgment of the full indebtedness, by making the subsequent security subject to it. This was a question that belonged to the obligor to determine for himself when giving the third mortgage; but, besides this, what right have those coming in under it to complain? They come in with full notice of the acknowledgment of the indebtedness and previous lien; and, especially, what right have the Milwaukie and Minnesota Company to complain, who purchased the equity of redemption through Barnes, their agent, subject to the previous incumbrances of $1,000,000. They have the benefit of that incumbrance by an abatement of that amount in the price of the purchase.

Without pursuing the case further, we are satisfied the decree of the court below, reducing the indebtedness of the La Crosse and Milwaukie Company to the bondholders, is

Opinion of the court.

erroneous, and that the decision should have been for the full amount of one million of dollars, and interest.

WE SHALL, THEREFORE, REVERSE the decrce, and remit the cause to the Circuit Court of the United States. for the District of Wisconsin, with directions to enter a decree for all the interest due and secured by the mortgage, with costs; that the court ascertain the amount of moneys in the hands of the receiver or receivers from the earnings of the road covered by the mortgage, which may be applicable to the discharge of the interest, and apply it to the same; and that if the moneys thus applied are not sufficient to discharge the interest due on the first day of March, 1864, then to ascertain the balance remaining due at that date, and in case such balance is not paid within one year from the date of the order of the court ascertaining it, then an order shall be entered directing a sale of the mortgaged premises, under the direction of the court, and on bringing the proceeds into court, they shall be applied to the payment of the balance of interest; and if they exceed such balance, shall be applied to the future accruing interest down to the sale; and if they exceed that, to the principal of the bonds, in case the bondholders assent, or pro rata to those who may assent, and any remaining balance of the proceeds to be invested, under the direction of the court, for the payment of future accruing interest, and ultimately the principal.

AND FURTHER, that in case the interest upon the bonds is paid without a sale, the decree shall remain as security for subsequent accruing interest, and ultimately for the principal.

AND FURTHER, that the court may pay out of moneys in the hands of the receiver, or out of the proceeds, the taxed costs of the trustees in the proceedings for the foreclosure of the mortgage, not taxed and received from the defendants in those proceedings; and also such counsel fees in behalf of the trustees, as the court, in its discretion, may seem right to allow.

DECREE ACCORDINGLY.

Statement of the case.

RANSOM v. WILLIAMS.

Under the statute of Illinois which authorizes execution to issue against the lands of a deceased debtor, provided that the plaintiff in the execution shall give notice to the executor or administrator, if there be any, of the decedent,‚—a sale without either such notice or scire facias, as at the common law (or proof that there were no executors ?), is void. On a question of title, under this statute, the burden of proving that his purchase was after due notice rests with the purchaser; the record of execution and sale not of itself raising a presumption that notice was given.

RANSOM brought ejectment against Williams, in the Circuit Court for the Northern District of Illinois. Both parties claimed title from Galbraith. The plaintiff relied upon a sheriff's deed, made pursuant to a sale under an execution upon a judgment against Galbraith and others, obtained in the State court of Ogle County, on the 27th of March, 1841. The execution was issued on the 25th of November, 1847; the sale made on the 25th of November, 1848, and the deed executed on the 24th of July, 1849. The defendants claimed under a deed from Galbraith and wife, dated on the 31st of May, 1842. This deed contained a special covenant against the "claims of all persons claiming, or to claim, by, through, or under him." Galbraith died in 1843, and letters of administration upon his estate were issued on the 25th of February in that year.

A statute of the State of Illinois, it is here necessary to say, authorizes execution to issue against the lands and tenements of a deceased judgment debtor, "provided, however, the plaintiff or plaintiffs in execution, or his or their attorney, shall give to the executor or administrator, if there be any, of said deceased person or persons, at least three months' notice in writing, of the existence of said judgment before the issuing of execution." There was no proof that such notice had been given to the legal representatives of Galbraith; but it was proved by the plaintiff that the preinises in controversy had been sold under a prior execution, and that, on the motion of the judgment creditor, the court

Argument in support of the sale.

to which the execution was returned had set the sale aside, quashed the execution, and ordered that another execution should issue. This order was made on the 24th of September, 1847.

The court below charged the jury, that the want of proof of due notice to the legal representatives of Galbraith, before the issuing of the execution, under which the sale was made, was fatal to the plaintiff's case.

The jury found accordingly, and the plaintiff excepted. The correctness of the charge was the point on error here.

Mr. E. S. Smith, in support of the sheriff's sale: The only thing made necessary by the proviso, before execution can issue, is notice to the executors, or administrators, if there be any, of the existence of the judgment. The statute dispenses with the common law proceedings, and in cases only where there are administrators or executors appointed, is it necessary to give notice. If there be no executors or administrators, execution can issue and sale be made, after the death of the defendant, without notice, and this sale can be defeated only by showing that administrators had been appointed at the time the execution issued, and that no notice of sale was given to them. The design of the statute was to give to the creditor a cheap mode in which to enforce the lien of his judgment. The lien once attached, it will operate until the judgment is satisfied.

The record is regular on its face. It is just as it ought to be, supposing notice to have been given. Even if notice had been given, that fact would not appear on it. Herein, a sale, under the Illinois statute, would differ from a common law proceeding, where the sci. fa. to revive would be a part of the record proper. The present record thus affords presumptive evidence that notice had been given; and it placed the burden of proof on the defendants to show want of notice, if there was such want. The defendants could have called the administrators to show this want, if it really existed.

The defendants claim title from Galbraith, by deed, dated

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