Indiana Southern Co v. Liverpool, London Globe Ins Guion v. Same
| Decision Date | 05 November 1883 |
| Parties | INDIANA SOUTHERN R. CO. v. LIVERPOOL, LONDON & GLOBE INS. Co. GUION v. SAME |
| Court | U.S. Supreme Court |
Saml. A. Huff and A. L. Roache, for appellants.
Geo. Hoadly, E. M. Johnson, Edwd. Colston, and Benj. Harrison, for appellees.
These are appeals from the final decree in a suit brought by the Liverpool, London & Globe Insurance Company to foreclose a mortgage given by the Indiana Southern Railroad Company to William H. Swift and Samuel J. Tilden, trustees, to secure an issue of bonds, 1,500 of which, amounting in the aggregate to $1,500,000, are held by the insurance company. The suit was begun in a state court on the thirteenth of June, 1868, but on the twenty-fourth of November, 1871, it was removed to the circuit court of the United States for the district of Indiana. Among the defendants when the removal was made, were the Ohio & Mississippi Railway Company, and the Fort Wayne, Muncie & Cincinnati Railroad Company. The Indiana Southern Company acquired its title to the mortgaged property in January, 1866, by purchase at a foreclosure sale of the property of the Fort Wayne & Southern Railroad Company. When this purchase was made the railroad was in an unfinished condition, and the Indiana Southern Company itself abandoned all work upon it early in 1867. A part only of the line was graded by these companies, and no ties or rails were ever laid by either of them. The Indiana Southern Company is confessedly insolvent. After the proceedings for the foreclosure of the mortgage of the Fort Wayne & Southern Company had been finished, after the mortgage by the Indiana Southern Company to Swift and Tilden had been executed, and after the commencement of this suit for its foreclosure, the Ohio & Mississippi Company, and the Fort Wayne, Muncie & Cincinnati Company, each purchased from the Fort Wayne & Southern Company a part of the line of that company, the purchasing companies intending to use the property purchased in the construction of their respective roads. They claimed that the proceedings for the foreclosure of the mortgage of the Fort Wayne & Southern Company were invalid, and that their title by purchased from that company was superior to the title of the Indiana Southern Company and its mortgagees. Upon their purchase they each entered into the possession of their respective portions of the old line, and proceeded to construct and finish their several roads thereon.
On the twelfth of September, 1872, Swift and Tilden, the trustees of the Indiana Southern mortgage filed a cross-bill in the cause, the object and purpose of which was to foreclose the mortgage for the benefit of all bondholders, and to quiet their title as against the adverse claims of the Ohio & Mississippi, and Fort Wayne, Muncie & Cincinnati Companies. The Indiana Southern Company has never answered either the bill or the cross-bill, and on the twenty-fourth of September, 1872, an order was entered in due form that the bill and cross-bill be taken as confessed by that company. On the fourteenth of November, 1873, a reference to a master was ordered to ascertain and report the amounts due to bondholders on the Indiana Southern mortgage. On the eighteenth of December, 1873, the Ohio & Mississippi and Fort Wayne, Muncie & Cincinnati Companies each filed answers to the bill and cross-bill, setting up their respective titles, and what they had done pending the suit in the construction of their roads upon and over a part of the original right of way and grading of the Fort Wayne & Southern Company. Before this time an agreement of compromise had been entered into between the insurance company and the two purchasing railroad companies, to take effect if all the other parties in interest should give their assent. This assent does not appear to have been obtained.
On the twenty-first of April, 1877, the master made a report, stating the amounts due the several bondholders who had proven their claims before him, and on the seventeenth of May the Indiana Southern Company filed exceptions to all his allowances. On the second of January,...
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