Bell Silver Copper Min Co v. First Nat Bank of Butte
| Decision Date | 04 March 1895 |
| Docket Number | No. 154,154 |
| Parties | BELL SILVER & COPPER MIN. CO. et al. v. FIRST NAT. BANK OF BUTTE et al |
| Court | U.S. Supreme Court |
W. F. Sanders and A. H. Garland, for plaintiffs in error.
M. Kirkpatrick, Wm. Scallon, and W. W. Dixon, for defendants in error.
This case is before us on appeal from a judgment of the supreme court of the territory of Montana affirming a judgment of one of its district courts. 19 Pac. 403.
The original action in the district court was ejectment commenced by the plaintiffs in Silver Bow county for the possession of two mining claims situated therein. It was tried by the court without the intervention of a jury, upon certain agreed facts in the nature of a special verdict.
It appears by them that on the 25th of April, 1882, the defendant the Bell Silver & Copper Mining Company, a corporation organized under the laws of Montana, was the owner and in possession of the mining ground described in the complaint, the other defendants named being at the time upon the premises under contract with the company. On that day the defendant company executed and delivered to the grantees therein designated an indenture reciting that it was authorized by the laws of the territory of Montana, by its articles of incorporation, and by a vote of its trustees, to execute trust mortgages of all its property, real, personal, and mixed, to secure the payment of bonds issued by it, and it was about to issue 60 bonds, in the sum of $1,000 each, to secure a loan of $60,000 to be made to it; and declared that in order to secure the payment of the bonds to be thus issued, and interest thereon, it had granted, bargained, sold, and conveyed, and by those presents did grant, bargain, sell, and convey, to Samuel Wells and Theodore H. Tyndale, as trustees, and the survivor of them, their successors in trust, and assigns, the property described in the complaint, with all the buildings, privileges, franchises, and appurtenances; this last clause not to be construed so as to prevent the company from selling old materials in the ordinary course of business, to be replaced by new, nor to prevent it from mining, reducing, or selling ore from the mine in the ordinary course of business, meaning and intending thereby to mortgage all the property, real, personal, and mixed, of whatever nature or name, owned by the party of the first part, but upon the following express trusts, that is to say, that in case the Bell Silver & Copper Mining Company should fail to pay the principal, or any part thereof, which might fall due on the bonds secured thereby, at any time and place when and where the same might become due and payable according to the tenor and effect thereof, and for 30 days thereafter, then and in that case, upon the written request of the holders of one-fourth part of the bonds which might at the time be outstanding and unpaid, it should be the duty of the parties of the second part, their survivors or assigns, to enter upon an take possession of the premises of the party of the first part, their successors in trust, and assigns, or they might, at their discretion, upon the written request of the holders of one-fourth of the bonds then unpaid, cause the premises and property to be sold at public auction in Butte City, Mont., or in the city of Boston, Mass., as the parties of the second part, their successors or assigns, might deem best, first giving 30 days' notice of the time and place and terms of sale, by publishing the same once a week for three weeks successively in one of the principal newspapers for the time being in Boston, Mass., and Butte City, Mont., and upon such sale to execute to the purchaser or purchasers thereof a good and sufficient deed or deeds of conveyance in fee simple for the same, which should be a bar against the said Bell Silver & Copper Mining Company, party of the first part, its successors and assigns, and all other persons claiming under it or them, of all right, interest, or claim in and to the premises and property and all parts thereof.
And it was expressly agreed by the indenture in question that the parties of the second part, their successors and assigns, or any persons in their behalf, might purchase at any sale thus made, or made by order of the court, under the laws of Montana, and that no other person should be answerable for the application of the purchase money, and that the trustees should, after deducting from the proceeds of such sale the costs and expenses thereof, and of managing the property, and enough to indemnify and save themselves harmless from and against all liability arising from the trust and for their own compensation, apply so much of the proceeds of the premises and property as might be necessary for the payment of the principal and interest of the bonds unpaid. whether matured or not, and restore the residue to the party of the first part; it being expressly understood and agreed that in no case should any claim or advantage be taken of any valuation or appraisement, redemption or extension, by the party of the first part, its successors or assigns, nor any process be obtained or applied for by it or them to prevent such entry or sale and conveyance.
The agreed statement of facts further showed, aside from other things, that thereafter, on the 24th day of June, 1885, one Harriet M. Pitman, being then the owner of 35 of the bonds mentioned therein, which had been due more than 30 days, wrote to Wells and Tyndale a letter directing them, in their discretion, to proceed and sell the premises upon the terms described in the instrument, and thereafter, on the 14th day of July, 1885, the bonds being past due and unpaid, Samuel Wells and Theodore H. Tyndale prepared and published a notice of sale, the substance of which, as to time, was published in the Boston Traveller and the Butte Miner, papers of general circulation in the cities and vicinities respectively where they were published.
And in pursuance of such notice, on September 2, 1885, Wells and Tyndale offered for sale to the highest bidder the property described in the notice, when the same was struck off to the holders of the bonds in the mortgages mentioned, for the sum of $45,000, they being then and there the highest and best bidders; and thereafter, on the 12th of October, 1885, Wells and Tyndale made and delivered to the plaintiffs, the purchasers at the sale, a...
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