Central Trust Co. v. Meridian Light & Ry. Co.

• Citation: 106 Miss. 431,63 So. 575
• Decision Date: 15 December 1913
• Docket Number: 15,780
• Parties: CENTRAL TRUST CO. ET AL. v. MERIDIAN LIGHT & RY. COMPANY
• Court: United States State Supreme Court of Mississippi

63 So. 575

106 Miss. 431

CENTRAL TRUST CO. ET AL. v. MERIDIAN LIGHT & RY. COMPANY

No. 15,780

Supreme Court of Mississippi

December 15, 1913

APPEAL from the chancery court of Lauderdale county, HON. SAM WHITMAN, JR., Chancellor.

Suit by the Central Trust Company and others against the Meridian Light and Railway Company and others. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Eli H Chandler, Hirsch, Dent & Landen, G. Q. Hall and Hall &amp Jacobson, for appellants.

Wm. H Ambrecht and Baskin & Wilbourn, for appellee.

Argued orally by Joe Hirsch and Gabe Jacobson, for appellant and Wm. H. Ambrecht and R. E. Williams, for appellee.

OPINION

SMITH, C. J.

On the 17th day of May, 1890, the Meridian Gaslight Company conveyed to the St. Louis Trust Company the property here in controversy in trust to secure the payment of sixty first mortgage bonds executed by it. In 1901, default having been made in the payment of these bonds, this deed of trust was foreclosed by a bill in equity, and the property sold, at which sale A. C. Howze, trustee, became the purchaser, and the present owners of the property claim title through him by mesne conveyances. In 1893 the Meridian Gaslight Company executed a second deed of trust to the Central Trust Company to secure the payment of a second series of bonds, each for the sum of one thousand dollars payable ten years after date with interest at the rate of six per cent. per annum, payable quarterly "upon presentation and surrender of the interest coupons attached to said bonds as they severally become due." These bonds contained the following provision: "If default shall be made in the payment of any quarterly annual installment of interest on this bond and be demanded and shall remain unpaid for ninety days after such demand, the principal of this bond shall at once become due and payable." The mortgage stipulated, quoting from the brief of counsel for appellants, that "should the Meridian Gaslight Company 'make default in the principal or interest of said bond, and should such default continue for three months,' then said Central Trust Company, upon being requested to do so by the holder or holders of a majority of said bonds outstanding, 'shall proceed to sell,' etc." These bonds and the interest coupons attached thereto are payable at the office of the Central Trust Company in New York City. On the 1st day of June, 1899, appellant Loper, the owner of the bonds here sued on, presented to the Central Trust Company coupons numbered twenty-four attached thereto, and requested payment thereof, which request was refused, and thereafter, in the language of appellants' bill, "the said Richard F. Loper has frequently demanded of said trustee the payment of the accrued interest evidenced by the successively maturing coupons on said bonds and the payment of the principal sum evidenced by said bonds, the payment of which has always been similarly refused when so demanded, and that no part of said interest or said principal sum, so demanded, has been paid either by the said company or any one else in its behalf, and that the same is now due, owing, and unpaid." On the 26th day of June, 1906, Loper, together with the Central Trust Company, instituted this proceeding in the court below, praying that the deed of trust securing his bonds be foreclosed, and that he be permitted to redeem the property from the sale under the deed of trust executed to the St. Louis Trust Company. Neither Loper, the Central Trust Company, nor any holder of the bonds secured by the deed of trust to the Central Trust Company, were made parties to the suit by which the St. Louis Trust Company mortgage was foreclosed. From a decree dismissing appellants' bill, this appeal is taken.

At the close of appellants' testimony, the chancellor sustained an objection which had been made in proper form to the introduction of the bond sued on, and excluded them from the evidence on the ground that their execution had not been proven. It is unnecessary for us to decide whether or not the chancellor erred in so doing, for the reason that this evidence was not excluded until complainants had rested...