Page:Federal Reporter, 1st Series, Volume 7.djvu/442

 430 KBZpByUi SEPOBT£B. �against the Spartanburg & Asbeyille Eailroad Company, J. B. Cleveland, and W. H. Inman, trustees named in the mort- gage, and Eice & Coleman, Fry & Deal, E. Clayton, and John Garrison, creditors of the Spartanburg & Asheville Eailroad, as contraotors, laborers, and material men, for the foreclosure of the mortgage to secure said bonds. The defendant corpo- ration was formed by the consolidation of the Spartanburg & Asheville Eailroad Company, of South Carolina, and the Greenville & Prench Broad Eailroad Company, of North Car- olina, July 31, 1874. The stockholders of the Spartanburg & Asheville Eailroad Company, August 9, 1876, adopted a resolution in regard to placing a mortgage on the road, which was followed on the same day by the adoption of a similar resolution by the board of directors. The mortgage, securing bonds to the amount of $670,000, was executed October 1, 1876, by the president affixing the seal of the company, and signing, " The Spartanburg & Asheville Eailroad Company, by D. E. Duncan, President." W. K. Blake signed it as sec- retary and treasurer of the company, and W. H. Inman and John B. Cleveland, the trustees, also signed it and affixed their seals. Afterwards, but prior to September 28, 1878, two of the directors afSxed their hands and seals. This mortgage was duly registered in Spartanburg county, South Carolina, June 20, 1877. The master finds that the mortgage was duly registered in Buncombe eounty, North Carolina, November 25, 1878; in Henderson county, North Carolina, November 23, 1878 ; in Polk county, North Carolina, November 22, 1878. Six hundred and forty-twothousand dollars of the bonds passed out of the hands of the company; $4,500 becoming the property of plaintiff V. E. Tommey. Six hundred and fifteen thousand dollars were held as collateral. The mortgage provided that the whole amount of the bonds shonld fall due upon default in the payment of interest for six months. De- fault was made, upon which this suit was b'rought. Fry & Deal entered into a contract with the Spartanburg & Asheville Eailroad Company, June 2, 1877, to build four trestles on the line of the road in Polk county, North Carolina, and the work ��� �