Page:Federal Reporter, 1st Series, Volume 7.djvu/806

 794 FBDBBAE BKJPOBTBB. �out of the State of Kentucky. Hdd, (a) that, under the facts alleged and the terms of the mortgftge, said Une from Newport.to Catletts- burg was not a branch of a road virhich said Kehiucky & Great East- em Company was authorized to build ; \b) that the Kentucky & Great Eastern Company had no right, so far as the crosa-bill shows, to acquire said Maysville & Bi^ Sandy Railroad Withbut the concur- rence of the stockholders of the former, and such concurrence is not alleged. ^ ' �Held^further, that, under the allegations of the cross-hill and the tenus of the mort gage, said Maysville & Big Sandy Railroad was not intended to be conveyed as a.fter-acquired propertv. ' �Quœre, the Kentucky & Great Eastern Company having, at the time of the execution of the mortgage, no authority to acquire said Maysville & Big Sandy Railroad, whether, although It might have been intended so to convey said latter-named railroad as after- acquired property, it would have passed under gaid mortgage, the same being ult,ra vires. �5. Pbactice— RKPiiBADBB Afteb Rbmovai. fbom Btate Coukt. �In Equity. On demurrers to cross-bill oi Parmers' Loah & Trust Company, praying a foreclosure of; its mortgage, �Wm. H.Wadsworth, of Mayaville, Ky., and Perry eJenney, of Cincinnati, for M. & B. S. Ey. Co. and Wadsworth and �associates. �I. The Kentucky & Great Eastern Railway Company had no right or title to the franchise or property of the Maysville & Big Sandy Railway Company to pledge to Farmers' Loan & Trust Company. �II. The Kentucky & Great Eastern Railway Company did not mortr gage thefranchise or property of Maysville & Big Sandy Company and the terms of the mortgage do not embrace the same. (a) Only the Ken- tucky &, Great Eastern Railway Company's own Une, acquired or to be acquired, is embraced in the mortgage. (b) A railroad not then acquired by that cqmpany, and which it had not then power to construct, will not paas by the mortgage, as af ter-acquired property. Jones on Rail. Secur. ^5 104-107 ; Meyer v. Jbhnston,53 Ala. 237, 331 ; Shamokin Val. Ry. Co. v. Livermore, 47 Pa. St. 465 ; Fa/rmen' L. £ T. Co. v. Com. Bank, 11 Wis. 207; 15 Wis. 434; mnmnore v. Racine, etc., By. Go. 12 111. 649 ; Walsh v. Barton, 24 Ohio St. 28 ; 1 Jones on Mortgages, H 156, 157. When right of action on con tracts will pass. Jones, Rail. Secur. § 108 ; Mil., etc., Ry. Co. V. Mil, etc., Ry. Co. 20 Wis. 174. �III. As after-acquired property, the mortgagee would take it subject to equities. 1 Jones on Mortgages, J 158, and notes; Fosdiek v. Schall, 99 U. S. 250 ; U. 8. v. N. 0. By. Co. 12 Wall. 362; Beall v. WMte, 104 U. S. 382. �G. Li Raison, Jr., of Cincinnati, for plaintiff and Ken. & Gt. East. Ey. Co. ��� �