4 FEDERAL REPORTER.
8. Equrrr-LAcnms—Dmmmnan. _
‘ Where the delay on the part ofia bondholder under a railroad mortgage in
bringing suit to foreclose is for aperiod less than that ilxed by the statute of
limitations, the fact of such delay is a mixed question of law and fact, and
cannot be passed upon on demurrer to the bill.
4. RArL1·.oAD COMPANIES-——BONDS AND MOBTGAGEB—FORECLOSURE—SU¥T BY
Bounnonnna. -
A railroad mortgage provided thatyin case of default in interest for four
months, the principa should become due, and that the trustees should, "upon
written request of the holders of a majority in amount of * * * outstand-
ing bonds, * * * proceed to foreclose the mortgage" within a reasonable
time. Acting upon such request, the trustees Bled a. bill to foreclose in the
state courts. which was dismissed in special ter·n for want of jurisdiction of
the subject-matter. The trustees took an appeal, but, before it was deter-
mined, a bondholder urged the trustees to renew the litigation in the federal
courts, and, upon their refusal to do so, brought the suit there himself, and
in his own name. Held, on demurrer to the bill, that, to the extent of accrued
and unpaid interest, the suit was properly brought. ,
5. Shun-—P.uvr1Es. X,
A bill to foreclose a railroad mortgage executed by two companies, the H.
and the W.; set out the respective incorporations; a grant of way to the H.;
, the practical consolidation of the two companies; and the expenditure of a
large sum of money by the consolidation upon the construction of a road
over such right of way] and the execution of the mortgage thereon. lt then
traced the franchise through many conveyances, uuti it ultimatelvassed
into the hands of the S. road, and was leased by it to the C. road. old, on
demurrer to bill, that the S. and the C. companies were properly made parties,
being respectively owner of the equity and lessee in possession of the mort-
gaged premises.
6. SAME-—·CORPORA'I.‘E EXISTENCEIOF Mo1vreAoon—EsrorraL ·ro Qunsrron.
" Two railroad companies. the C. and the Sadparties to a bill to foreclose a
‘ morgage on the road in their hands, demurre to the bill on the ground that
the . company, which, with the W. company, had executed the mortgage,
, l had never been duly. incorporated. The original franchise had been granted
the H. company, and the S. company had succeeded to the franchise through
various mesne conveyances, and had leased it to the C. company for 975 years.
· It did not appear that the validity of the incorporation of the H. compa·ny
had ever been questioned in direct proceedings b · the state, or by thosein-
terested in the incorporation. Itwas also averredy that the H. company had
acted continuously as a corporation, had acquired the mortgaged premises as
such, and as such had executed the mortgage, received the proceeds of the
bonds in suit, and put them into the construction and operation of the road.
Held, that the demurrants were estopped to question the incorporation, which
was their only source of title.
7. SAME·—ES'.l‘OP1’EL T0 Dnnr Vanrmrr or Moaroaon.
A joint railroad mortgage, executed by the H. company and the W. com-
pany, covered “ all and singular the railways of each, constructed or hereafter
to be constructed, and also all and singular the franchises now owned by each
or either for the purpose of building and operating their respective lines of
railway, " etc. The bonds secured by the mortgage were those of the W. com-
pany, issued for the purpose of enabling it to acquire a lease of the road and
entire property, including a valuable franchise, of the H. company, and to
build, urnish, and operate its own road. The H. company then leased its
franchise for the full corporate term to the W. company, and transferred to
it its entire capital stock. The said railroad property and franchises passed
throqgh various mesne assignments into the hands of the S. company, who
lease them to the C. company Held, on demurrer to bill to foreclose the
' mortgage, that the S. and C. companies were estopped to dispute its validity.
In Equity. Bill for foreclosure of a railroad mortgage, receiver, and
account. On demurrer to bill.
This suit is brought by the complainant, a citizen of New Jersey, the
holder of 15 bonds of $1,000 each, made and dated June 1, 1868, by