86 Kan. 860 | Kan. | 1912
The opinion of the court was delivered by
The appellant, as trustee, brought this, action to foreclose a mortgage or deed of trust executed by the Cockerill Zinc Company, a corporation, to secure-
The mortgage or trust deed provided that after six months’ default in interest, upon notice by the trustee or any bondholder, and the election of the majority of the bondholders, the entire principal sum and interest should become due; further, that upon such default the mortgagor, upon demand of the trustee, should surrender possession, and the trustee, or such agent as it should appoint, might take possession of all the property, including the company’s books and accounts, and operate and manage the plants and make all needed repairs, alterations, additions, and improvements as it should deem wise, receive rents, incomes, and profits, “and out of the same pay all proper costs and expenses of so taking, holding and managing the same.” Another provision reads:
“The said trustee shall be authorized to pay reasonable compensation out of the trust estate to such person or persons as it may employ in 'the administration or management of this trust; and the said trustee shall*862 be entitled to just compensation for all services rendered by it in connection with such trust, which shall, be paid out of the trust estate.”
The trustee was not to be personally liable for any debt contracted by it “during any period wherein the’ trustee shall manage the mortgaged premises upon entry or voluntary surrender as aforesaid.” On July 1, 1909, the Cockerill Zinc Company was in default in its interest payments, which had continued for a year. Twelve hundred bonds, of the face value of $1,200,000,. were issued and secured by the mortgage. A. B. Cock-erill, president of the zinc company, owned 534 of the-bonds, George E. Nicholson owned 300, and the National Bank of Commerce, of St. Louis, Mo., owned 250. After the default had continued for more than, six months, the holders of a majority of the bonds, which included two hundred of A. B. Cockerill’s bonds-held by a bank as collateral security, requested the' Cockerill Zinc Company, in writing, to substitute the-Commonwealth Trust Company, of St. Louis, Mo., for the New York Trust Company, the original trustee named in the mortgage. The substitution was duly made on July 2, 1909, at a meeting of the directors of the zinc company, and at the same meeting a resolution was adopted directing A. B. Cockerill, as president of the company, to deliver possession of all the property covered by the mortgage to the substituted trustee. A few days later, on July 12, A. B. Cockerill, George E. Nicholson, and the National Bank of Commerce, of St.. Louis, holders of 1084 of the bonds, made a written request to the Commonwealth Trust Company to act as-substituted trustee and to take charge of the property through Mr. Nicholson and administer the trust for the-bondholders.
The evidence does not show that the trustee took possession formally, but it is clear from all the evidence that while Cockerill, as president of the company, continued in charge, he was under the direction and con
It can not be doubted that the court had power to permit the filing of interpleas at any time before the final disposition of the case. Having acquired jurisdiction for one purpose, it could and properly should retain it for the purpose of rendering justice to all parties in interest. It could do this after judgment as well as before, and without any express provision of the code. (Gibson v. Ferrell, 77 Kan. 454, 94 Pac. 783.) The permission to file the interpleas after judgment rested in the sound discretion of the court. Besides, it could not possibly have injured the appellant to permit the interpleas to be filed when they were.
The judgment is affirmed.