| U.S. Circuit Court for the District of Western New York | Feb 6, 1907
The defendants have interposed demurrers herein on the grounds that the court is without jurisdiction, the bill failing to show a controversy between citizens of different states at the time of the commencement of the action; that the Colonial Trust Company, the original trustee, or its successor, the Hamilton Trust Company, have not been requested to institute a foreclosure of the mortgage herein sought to be foreclosed, as provided therein; and generally, that the bill lacks equity and is multifarious.
The mortgage inter alia provides that bondholders shall not have the right- to foreclose the mortgage for default of any of its conditions unless a majority in amount of the holders of bonds outstanding have requested in writing of the trustee that a foreclosure be brought in the name of the trustee and security for costs and liabilities be offered; such notification and indemnification in terms being made a condition precedent to foreclosure. The demurrants contend that the bill does not disclose a proper request to bring this action. Authorities abound that a provision contained in a mortgage such as is mentioned in the bill is purely contractual and ordinarily must be strictly complied with before a bondholder feeling himself aggrieved can enforce his remedy. See Chicago, D. & V. Railroad Co. v. Fosdick, 106 U. S. 47, 1 Sup. Ct. 10, 27 L. Ed. 47; Seibert v. Minneapolis & St. L. Railroad Co., 52 Minn. 158, 53 N.W. 1134" court="Minn." date_filed="1893-01-06" href="https://app.midpage.ai/document/seibert-v-minneapolis--st-louis-ry-co-7967740?utm_source=webapp" opinion_id="7967740">53 N. W. 1134, 20 L. R. A. 535, 38 Am. St. Rep. 530; Shaw v. Little Rock, etc., Railroad Co., 100
The bill is not multifarious. The various matters alleged are not collateral or independent of the text of the bill, a perusal of which indicates that the interests of the different defendants are liable to be affected by the decree of this court.
The remaining ground of demurrer relates to the jurisdiction of the court. The omission to allege that the orator was a citizen of the state of Massachusetts at the time the action was commenced is fatal. The decisions hold that it is not enough to allege the citizenship of the party bringing the suit at the time the amended bill was filed. Continental Ins. Co. v. Rhoads, 119 U.S. 237" court="SCOTUS" date_filed="1886-11-29" href="https://app.midpage.ai/document/continental-insurance-v-rhoads-91747?utm_source=webapp" opinion_id="91747">119 U. S. 237, 7 Sup. Ct. 193, 30 L. Ed. 380" court="SCOTUS" date_filed="1886-11-29" href="https://app.midpage.ai/document/continental-insurance-v-rhoads-91747?utm_source=webapp" opinion_id="91747">30 L. Ed. 380; Menrad v. Goggan, 121 U.S. 253" court="SCOTUS" date_filed="1887-04-11" href="https://app.midpage.ai/document/menard-v-goggan-91917?utm_source=webapp" opinion_id="91917">121 U. S. 253, 7 Sup. Ct. 873, 30 L. Ed. 914" court="SCOTUS" date_filed="1887-04-11" href="https://app.midpage.ai/document/menard-v-goggan-91917?utm_source=webapp" opinion_id="91917">30 L. Ed. 914; Sanbo v. Union Pacific Coal Co. (C. C.) 146 F. 80" court="None" date_filed="1906-05-10" href="https://app.midpage.ai/document/sanbo-v-union-pac-coal-co-8761050?utm_source=webapp" opinion_id="8761050">146 Fed. 80.
The demurrers are overruled upon all except the last ground. Complainant may have leave to amend within 20 days, with costs.