BEEKMAN v. nuns0N mvnn \’l’EST.SHORE nr. co. I1`
want of jurisdiction of the subjecbmatter. Y An appeal was taken: by the
trustees, and is apparently unprosecuted, and· certainly undetermined.
Complainant therefore requested said trustees to bring suit in this court,
which they declined to do. The demurrants insist that complainant ·is
not entitled to maintain this action unless itbe shown that the trustees
have refused to accede to a "written request of the holders of a majority
of the bonds then outstanding." Whether or not, as urged by the com-
plainant, the bringing of asuit in a court without jurisdiction of the-sub·‘
ject—matter is a failure to comply with the written request, need not be
now considered. There is no restriction in the deed of trust upon the
right of the coupon holder, without assent of a majority of the bond-
holders, to foreclose for interest upon default, except whenadvantage is
sought to be taken of that default as advancing the date when the prin-
cipal becomes due. This suit may in any event be sustained for interest
due, (Railroad O0. v. Fosdrbk, 106 U. S. 47,1 Sup. Ct. Rep. 10;) whether
it can be sustained for principal may be determined upon the trial. ·
‘ 4. The objection that the bill is not tiled on behalf of all other bond-
holders similarly situatedis wholly unwarranted by an inspection of its
terms. ‘ ‘  
5. The next proposition advanced in defendants’ brief, namely,‘that
the demurring defendants’ claims to the property covered by the 'mort;
gage are independent and adverse, may be true in fact, but it certainly
does not appear on the face ofthe bill. To the Hudson River West Shore
Railroad Company alone was the consent to build a railroad through the
West Point reservation given by act of congress`. The court will not take
judicial notice upon argument of a demurrer that $600,000 is not enough
to build such railroad,--which is apparently what the demurrants’ooun-
sel expects it to do. For all that appears, the road was substantially
completed by the two original companies, and the complainant expressly
avers that a large sum of money was expended by them inconnection
with the property which is averred to be covered by the mortgage. i
Across the West Point reservation there is now operated by the demur-‘
ring defendants a railroad, which is so operated only by virtue of the act V
of congress above cited. The only title to this which it is averred the-
New York Central & Hudson River Railroad Company has, is aslesseo
in possession of the defendant the West Shore Railroad Company. The
only title which it is averred the lastmamed defendant holds has come
to it through many hands indeed, but ultimately from conveyances made
by the mortgagors subsequent to the mortgage. As owner of the equity,
and as lessee in possession, the demurrants are proper parties defendantk
6. The demurrants next contend that complainant has slept so- long
uponhis irights that by reason of lapse of time and his own lacheshe isi
not entitled to reliefs There is no pretense that the suit is barred-’by
any statuteof limitations. If delay for any less period than that preér
scribed 1-by the statute is sought to be availed of in bar jof complainants
right to recover, the fact of such delay is a mixed question of law and?
fact, which should not be passed upon on demurrer. W ·     r·*`·J ,¢·
r 7. Itisfurther contended that the bonds on whicheomplainant sues: