6 FEDERAL nuroarmk.
on business, * * * and for money to make such purchases. Fi-
nal decree was entered in the action March 28, 1882, under which a
sale was made by the commissioners therein named on the sixth of
July, 1882, and Lemuel Coffin purchased the trust estate for $101,-
000, that being the highest sum bid for the property. p
By reference to the decree it will be noticed that the trustees,
the holders of the legal title of the property, were not made parties
to the forclosure suit, and that only $122,000 of the Erst·mortgage
bondholders appear on the record. By the affidavits of the two sur-
viving trustees it appears that not only were they not made parties,
but they were never requested to take any steps looking to a foreclos-
ure of the property, nor were they ever notified that there was de-
fault in the payment of the interest coupons, nor that the interest
had remained unpaid for the period of one month.
t Freeman Clarke’s affidavit shows that he understood the pending
proceedings were being carried on, not for the purpose of foreclosure,
but for the sole purpose of appointing and continuing Mr. Bullock as
receiver. Messrs. Freeman Clarke, E. T. Coann, and A. V. Clarke
say they did not know, until after the decree was entered, that a fore-
closure suit was in progress. The interest on their first—mortgage
bonds was paid up to the iirst of April, 1882, and the decree herein
was entered on the twenty·eighth day of March, 1882, prior to any
, default upon their large amount of coupons.
No proof appears to have been taken in the cause, and the decree
was entered by consent on the twenty—eighth of March, 1882. i Apart
. from the statements in the decree, there is no evidence that any of
the coupons were at that time unpaid. Mr. A. V. Clarke and others.
e made arrangements to protect their interests at the sale, but withdrew
from these arrangements on learning that the trustees had not been
made parties to the foreclosu1·e suit, and that the trustees claimed
that the sale would be invalid by reason of their not having been
joined as parties. Freeman Clarke refused to join in any effort to
bid upon the property, and notified the other first-mortgage bond-
holders that, in his opinion, the sale of the property in a suit to
which the trustees were not parties, would be irregular and void.
This position of Mr. Freeman Clarke as a trustee, arising out of a
failure to join the trustees as parties, created confusion and uncer-
A tainty among the bondholders, and led to the failure of many of them
to act in concert for the protection of their rights.
The affidavits of the plaintiffs Coann and A. V. Clarke show that
they were both ignorant of the fact that this action was a foreclosure
I