Southern Railway Co. v. Lancaster

149 Ga. 434 | Ga. | 1919

Fish, C. J.

(After stating the foregoing facts.) The defendants in error move in this court to dismiss the main bill of exceptions, on the ground that the Selma, Rome & Dalton Eailroad Company is not made a party to the bill of exceptions, citing the rule that when one of two or more defendants, against whom a decree has been rendered brings a writ of error to reverse it, it is necessary for him to join his codefendants as plaintiffs in error. The motion is not meritorious. "While this case was brought originally against the Selma, Eome & Dalton Railroad Company, the petition alleges that the company has no known place of business and no officer or agent in this State upon whom service could be made; and it does not appear that service was perfected upon that company. The petition for intervention on the part of the Southern Eailway Company contains practically the same allegations.- However, the rulings, decisions, and decree upon which error is assigned in the main bill of exceptions demonstrate that they were adverse to the Selma, Rome & Dalton Railroad Company. It follows, therefore, that even if, in the circumstancés stated, the Selma, Eome & Dalton Railroad Company could be made a party to the bill of exceptions, its proper position would be as a coplaintiff in error; and the plaintiff in error has moved to make that company such coplaintiff. This can be done without notice. See Macon Navigation Company v. Schofield, 111 Ga. 881 (36 S. E. 965), and cases cited; Ramey v. O’Byrne, 121 Ga. 516 (49 S. E. 595).

One of the contentions urged in behalf of the petitioners, Lancaster et al., whom we denominate the second mortgagees, which contention the trial judge sustained, is that the Selma, Rome & Dalton Railroad Company, the consolidated company, was never more than a de facto corporation, for the alleged reason that the consolidation of the three constituent corporations 'worked a dissolution of them all, and an extinguishment of all rights, privileges, and powers held under their respective charters; that the consolidation, if effective, created a new corporation; that none of the rights, privileges, and powers of the old corporations was transmitted to the new corporation; that the new company could exercise only such powers, etc., as were granted it by the act of consolidation, and that the powers, etc., which it undertook to exercise, and which are contested in this case by the second mortgagees, were never legally conferred upon the new company. Another reason advanced in support of the contention that the consolidated company was a mere de facto corporation is that the act of the General Assembly of Georgia, approved December 13, 1866, purporting to authorize the consolidation of the three constituent corporations, was unconstitutional and void, on the ground that it was an attempt to delegate a legislative power to the board of directors of the consolidated company to adopt for it the name of “Selma, Rome & Dalton Railroad Company;” and further, to adopt as its charter the charter of the Alabama and Tennessee River Railroad Company, as then existing, with the amendments thereto.

Generally, the consolidation of two or more corporations operates to dissolve them, and to create a new one, and the rights, privileges, and powers of the old corporations are not transmitted, by the act of consolidation, to the new corporation. Whether the rights, privileges, and powers of one or more of the old corporations are vested in the new corporation by the consolidation depends, however, in each case upon its own peculiar facts. The very purpose of the consolidation agreement, and of the statute authorizing it, or ratifying and adopting it, may, in a given ease, be to confer upon tbe new corporation some or all of the rights, privileges, and powers of any one or more of the old corporations, and thus to enable it, under a new name, to exercise such rights, privileges, and powers; and whether this be true is to be determined by the terms of the agreement of consolidation, and of the statute under authority of which the consolidation is effected. See Wabash &c. Ry. Co. v. Ham, 114 U. S. 587, 595 (5 Sup. Ct. 1081, 29 L. ed. 235). In the case now under review it is apparent from the respective charters granted by the General Assembly of Georgia to the Georgia & Alabama Eailroad Company, and to the Dalton & Jacksonville Eailroad Company, and the charter granted by the General Assembly of Alabama to the Alabama and Tennessee Eiver Eailroad Company, that it was the purpose of such legislatures that the charters granted respectively by them to these companies should enable them to connect and consolidate with each other, in the interest of the public, as well as for the benefit of the companies, and to construct and to operate an interstate railroad from Selma, Alabama, by way of Eome, to Dalton, Georgia. Each of the companies was given authority in its charter by which such purpose could be consummated on such terms as might be agreed on by and with the interested and contracting companies.

In August, 1866, the three companies, in pursuance of their respective charter rights, duly executed a consolidation agreement for the purpose stated therein, “so as to complete and own and use one continuous railroad from Selma, by way of Eome, to Dalton, under the authority and control of one set of officers.” Under this agreement all the rights, powers, privileges, franchises, and all the properties (real, personal, and mixed) belonging to either one and all of the contracting corporations, were declared to be the property and franchises of the consolidated company; each stockholder who had paid for his stock in any one of the contracting companies should be, to the extent of his stock, a stockholder in the consolidated company; the president and board of directors of the Alabama and Tennessee Eiver Eailroad Company should exercise full power and control over all the property of all of the contracting companies, thereby made the property of the consolidated company, until it should be given a new name by legislation, and should cause the railroad then completed from Selma to Blue Mountain, Alabama^to be extended and completed from the latter place, by way of Rome, to Dalton, Georgia;’ and to enable them to do so they were authorized to issue bonds and to execute mortgages on any part or all of the property and franchises of all of the companies, including the road-bed and right of way from Selma to Dalton; all the debts, contracts, obligations, and liabilities of each of the contracting companies were assumed by the consolidated company; all the obligations upon, and made or assumed by, the Alabama and Tennessee River Railroad Company should be valid and binding on all the companies consolidated into one; until a common name should be lawfully given under which the franchises of each of the .companies should be united; the Alabama and Tennessee River Railroad-Company was to be the active and controlling corporation, though the organizations of the other companies were to be continued until the consolidated corporation. should come into active and authorized being; at the next annual meeting of the stockholders of the Alabama and Tennessee River Railroad Company, each stockholder of the contracting companies should have the right to vote according to the amount of his stock; and each of the contracting companies should ask of the legislature which chartered it the enactment of a law giving one name to all of the companies consolidated under the agreement. Subsequently the legislatures of Georgia and Alabama each passed a statute in reference to such consolidation, that.of Georgia in December, 1866, that of Alabama in February, 1867, both' acts employing the same language, the statute of Georgia being as follows:

“An act approving the consolidation of the Dalton & Jacksonville Railroad Company, and the Georgia & Alabama Railroad Company, of the State of Georgia, with the Alabama & Tennessee River Railroad Company, of the State of Alabama, and to authorize the consolidated company to adopt a corporate name and charter, and act under the same.

“Section 1. Be it enacted, etc., That the consolidation of the Dalton & Jacksonville. Railroad Company, and the Georgia and Alabama Railroad Company, of the State of Georgia, with the Alabama & Tennessee River Railroad Compauy, of the State of Alabama, so as to form one consolidated Railroad Company for the construction and use of a railroad to be constructed from Blue Mountain, in the State of Alabama, as a continuation of the Alabama & Tennessee Eiver Eailroad Company, by way of Eome, to Dalton, in the State of Georgia, be and the same is hereby ratified and approved, and the said consolidated company, acting by its Board of Directors, shall be and it is hereby authorized and empowered to adopt the corporate name and style of the 'Selma, Rome & Dalton Railroad Company,' and to adopt as its charter the charter of the said Alabama & Tennessee Eiver Eailroad Company as now existing, with the amendments thereto, and under and by the said name and style and charter so authorized may and shall have, possess, enjoy, and exercise all its lawful rights, functions, powers, and privileges, and shall be subject to all lawful liabilities and responsibilities incurred or contracted, or to be incurred or contracted, by said consolidated company: provided, always, that nothing in this act shall be so construed as to release either of said companies from any obligation or liability incurred or contracted by them, or either of them, prior to their said consolidation." Sec. 2 repeals conflicting laws.

It is perfectly clear, therefore, in view of the terms of the consolidation agreement, and so much of the statute above quoted as expressly ratified and approved the agreement, that the new or consolidated company was vested with all the franchises and rights, privileges, and powers and all the properties of the three constituent corporations. Moreover, the latter part of the act expressly authorized the board of directors of the consolidated company to adopt the name of the Selma, Rome & Dalton Eailroad Company, and also to adopt as its charter that of the Alabama & Tennessee Eiver Eailroad Company, as then existing, with the amendments thereto. However, if it should be granted, for'the sake of the point, that under the terms of the consolidated agreement, and the statute ratifying and approving it, when the whole of the statute is considered, the three old companies were dissolved, it is nevertheless certain that the statute, conferred upon the new or consolidated company the right and power to adopt the then existing charter of the Alabama and Tennessee Eiver Eailroad Company, with the amendments thereto, which contained all the powers, rights, and privileges of either of the other two contracting companies. Accordingly, if the statute be valid and the name' and charter designated by it were adopted by the consolidated company, a new corporation with a new name and charter came into existence, becoming what has been termed “an interstate corporation,” for the ownership and management of an interstate line of railway, and entitled to the privileges and subject to the obligations imposed upon it by the laws of this State, and of the State of Alabama. See the extensive and valuable notes of Judge Freeman in the case of Morrison v. American Snuff Co., 89 Am. St. R. 598, 650.

Is the Georgia statute unconstitutional, and therefore void, for the reasons assigned ? We think not. It must be conclusively presumed that the legislatures of Georgia and Alabama, when they respectively enacted a statute ratifying and approving the consolidation agreement previously made by the three consolidating corporations, and authorizing the consolidated or new corporation to adopt as its name “Selma, Rome & Dalton Railroad Company,” and to also adopt the charter, with the amendments thereto, of the Alabama & Tennessee River Railroad Company, were actually cognizant of and fully understood all the terms of such agreement, and of course the full import of the statute respectively enacted by them. It was not essential that either the consolidation agreement so ratified and approved, or the charter with its amendments of the Alabama & Tennessee River Railroad Company, should be incorporated in the statutes approving and ratifying such agreement, and authorizing the new corporation to adopt as its own the charter of the Alabama corporation. Bibb County Loan Association v. Richards, 21 Ga. 592; Neal v. Todd, 28 Ga. 335; Central of Ga. Ry. Co. v. Georgia, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518), and eases cited on this point.

The charter of the Alabama & Tennessee River Railroad Company and the amendments thereto were fixed. There was no uncertainty or contingency as to the powers which the consolidated corporation would take by the adoption of the Alabama & Tennessee River Railroad Company’s charter, with its amendments. The consolidated company had no authority to add to the powers granted, nor to take away from the responsibilities created by that charter. Frequently laws are enacted by legislatures and made dependent for their operation upon future events and contingencies. Judge Cooley in his work on Constitutional Limitations (7th ed.), 164-5, after stating that it is one of the settled maxims of constitutional law that the power conferred upon the legislature to make laws can not be delegated to any other body or authority, says; “But it is not always essential that a legislative act should be a completed statute which must in any event take effect as law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event. Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not at their option. A private act of incorporation can not be forced upon the corporators; they may refuse the franchise if they so choose. [Citing Angelí and Ames on Corp. § 81.] In these cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary to perfected legislation, notwithstanding its actually going into operation as law may depend upon its subsequent acceptance.” Among the cases cited in the text is that of Lothrop v. Steadman, 42 Conn. 583, holding that it is not a delegation of legislative power to make the repeal of a charter depend upon the failure of the corporation to make up a deficiency which is to be ascertained and determined by a tribunal provided by the repealing act; as well as the case of State v. New Haven etc. Co., 43 Conn. 351, in which it is held that it is competent to make an act take effect on condition that those applying for it shall erect a station at a place named. Our own court in several cases has held that a statute can be enacted by the legislature and its operation be made contingent upon the will of bodies and persons other than the legislature; some of the cases are Murphey v. Educational Board of Burke County, 71 Ga. 856 — provision of law for payment of school officers, not to operate in a county after grand jury shall otherwise recommend; Haney v. Commissioners of Bartow County, 91 Ga. 770 (18 S. E. 28) — road law to go into effect in county on recommendation of grand jury. In the case at bar the consolidated corporation was given legislative authority and power to adopt the name of “Selma, Rome & Dalton Railroad Company,” and to also adopt as its charter that of the Alabama & Tennesse River Railroad Company, with the amendments thereto, etc. Accordingly, an acceptance of such charter by the new corporation was only necessary for its actual existence with all the rights, privileges, and powers embodied in the charter of the Alabama & Tennessee River Railroad Company. The legislative power conferred upon the directors of the new corporation, to adopt as its own the charter of one of the constituent corporations, did not seek to confer upon them any legislative authority, but merely the option to adopt as its charter that of the named constituent corporations. There is evidence in the record showing that the Selma, Eome & Dalton Eailroad Company, the consolidated company, after the statutes authorizing it" to’ do so, did duly accept and adopt as its own charter the Alabama & Tennessee Eiver Eailroad Company’s charter, together with the amendments thereto. The Selma, Eome and Dalton Eailroad Company in its name created debts, issued bonds, and executed mortgages (including the one under which the second mortgagees seek to set up their alleged rights), and also purchased rights of way and took conveyances thereto.

The contention made by the second mortgagees, that the charter of the Alabama & Tennessee Eiver Eailroad Company, with the amendments thereto, gave that company the right to lay out, construct, and operate a railroad within certain prescribed limits only within the State of Alabama, is not meritorious, as clearly appears from the charter and amendments thereto of that company, as well as the statutes ratifying and approving the consolidation agreement. And moreover, the second mortgagees themselves dealt with the Selma, Eome & Dalton Eailroad Company operating under the charter of the Alabama & Tennessee Eiver Eailroad Company, because it had no other charter, whilst it was constructing and operating the end of the railroad situated in Georgia.

Another contention made by the second mortgagees is that the first mortgage never operated as a lien upon so much of the railroad and other properties situated in Georgia not in the possession of the Selma, Rome & Dalton Railroad Company, or to which it did not have the right of possession at the time of execution of the first mortgage, but that all of such properties were covered by the lien of the second mortgage; and that the foreclosure and sale under the first mortgage did not pass the title to the property in Georgia acquired by the mortgagor between the dates of the first and second mortgages. . We can not concede the soundness of this contention. The Civil Code, which went into effect on January 1, 1863, declared (§ 1956) : “A mortgage in this State is only a security for a debt, and passes no title. It may embrace all property in possession, or to which the mortgagor has the right of possession at the time,” etc. This was the statute law at the time of the execution of the first and second mortgages involved in this case. The act of 1899 made a provision for mortgaging future-acquired property to secure an issue of bonds. There are a number of decesions by this court to the effect that (under the old statute) neither a corporation nor a natural person has a right to mortgage property which may be acquired after the execution of the mortgage. However, the charter of the Alabama & Tennessee Eiver Eailroad Company, including the amendments thereto, which was given by statute to the Selma, Eome & Dalton Eailroad Company, and which was adopted in accordance with the statute as its own charter, expressly authorized the Alabama & Tennessee Eiver Eailroad Company to mortgage after-acquired property; and in pursuance of its charter so adopted the Selma, Eome & Dalton Eailroad Company executed the first mortgage on its entire line of railroad, and all its properties situated in Georgia, including that of which it was then in possession, as well as that to which it then had the right of possession, and also that which it had legislative authority to subsequently acquire for the construction and operation of its railroad. Notwithstanding the provisions of the general law as stated in the code section just above quoted, the special statute authorizing the Selma, Rome & Dalton Railroad Company, under its adopted charter, to mortgage after-acquired property was valid. The constitution of 1865 (which was in effect at the time of the enactment of' the statute authorizing the consolidation involved in this case) declared: “Laws should have a general operation, and no general law affecting private rights shall be varied in a particular case by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person being under a legal disability to contract is capable of such free consent.” Civil Code of 1868, § 4904. It will be observed that the constitution of 1865 did not contain the provision of our present constitution (1877) that “no special law shall be enacted in any case for which provision has been made by an existing general law.” In Mattox v. Knox, 96 Ga. 403 (23 S. E. 307), it was said: “The legislature was not prohibited, before the constitution of 1877, from enacting special laws for particular localities, varying or changing a general law.” To the same effect is Burks v. Morgan, 84 Ga. 627 (10 S. E. 1096); Massey v. Bowles, 99 Ga. 216 (25 S. E. 270); Thorpe v. Butt, 106 Ga. 52 (31 S. E. 793). We accordingly hold that the first mortgage was a valid lien on all the property covered by it, and which the Selma, Rome & Dalton Railroad Co., the mortgagor, then owned or had in possession, or to which it then had the right of possession, and also upon that acquired subsequently to the execution of that mortgage; and that the foreclosure and sale under it passed the title to all such property.

Furthermore, aside from the rulings hereinbefore announced, and in view of the facts of the case as set forth in the statement preceding this opinion, the trustee in the second mortgage was, and the holders of the bonds secured by that mortgage áre, estopped to deny that the Selma, Rome & Dalton Railroad Company was a de jure corporation, and had, under its charter, authority to execute the first mortgage on all of its railroad property, including that after acquired, situated both in Georgia and in Alabama; and they are further estopped to deny the validity of the first mortgage and the priority of its lien over that of the second mortgage as to all the property involved in the case. There was embodied in the first mortgage a' statement of certain facts which the Selma, Eome & Dalton Eailroad Company, the mortgagor, was estopped to deny; and the trustee in the second mortgage and the holders of the bonds secured thereby, being privies in estate of the mortgagor, are likewise estopped to deny such facts. - The first mortgage gave a detailed history of the creation of the Selma, Rome & Dalton Railroad Company, denominating it as a corporation existing in and duly organized under the laws of the States of Alabama and Georgia; it set forth explicitly the respective charters of the three constituent companies, and the powers given them thereby, among them, that each of the companies had the right to connect and consolidate with the others, and that each of them had express authority to mortgage future-acquired property for the construction and operation of their designated railroads; that the three companies duly authorized so to do entered into a consolidation agreement-under the terms of which each constituent company agreed to transfer all of its charter rights and powers to the consolidated company, and did so; that such agreement was approved and ratified by certain statutes of the States of Georgia and Alabama, which authorized the consolidated company to adopt the name of “Selma, Rome & Dalton Railroad Company,” and also to adopt the charter of one of the constituent companies, viz., the Alabama and Tennessee River Railroad Company; that the consolidated company, duly and regularly authorized to do so, did adopt such name and charter. This mortgage contained a general warranty clause. These facts were material as to the parties to the first mortgage. They were certainly material, at least in one view, that is, that the first mortgagees were given facts by the Selma, Eome & Dalton Eailroad Company, which, in effect, constituted it a de jure corporation, with authority to mortgage all of its railroad property, including that to be after acquired, which facts were valuable not only to the first mortgagees, but to all who might desire to invest in the bonds secured by that mortgage; in other words, they tended to enhance the market value of the bonds. The mortgage was duly recorded. In Galveston Railroad Co. v. Cowdrey, 11 Wall. 459, 482 (20 L. ed. 199), it was held: The “holder of the fourth mortgage is an assignee of the railroad company [the mortgagor, in all the mortgages], claiming under it, with full notice of the other mortgages. He is in privity with the company, and is bound by the estoppel.” Moreover, the petition of the second mortgagee is brought against the Selma, Eome & Dalton Eailroad Company, to foreclose the second mortgage given by it. The original petition alleged that the defendant “is a corporation organized and existing under and by virtue of the laws of the State of Georgia.” This last allegation was, however, stricken by an amendment to the petition.

There are other reasons for holding that the second mortgagees are estopped in respect of the matters above stated. On the face of the bonds secured by the second mortgage appear these words: “Selma, Rome & Dalton Railroad Company, chartered by the States of Alabama and Georgia. — Second Mortgage Bonds.” They attached to their petition, as an exhibit made a part thereof, a copy of the second mortgage which contains the same recitals of facts as stated in the first mortgage, showing in detail the various steps taken in the creation of the Selma, Rome & Dalton Railroad Company. The second mortgage itself contained the after-acquired-property clause, which fact strongly indicated that the second mortgagees understood that the mortgagor company had the charter power to execute alien upon such property. One of the recitals in the second mortgage is as follows: “And whereas the said union and consolidation of the several railroad companies, so made as aforesaid, was expressly ratified and approved by laws duly enacted by the said States of Alabama and Georgia, respectively, in and of which said laws the consolidated company, the party of the first part hereto, was and is duly authorized and empowered to adopt as its corporate name and style the name of the Selma, Rome & Dalton Railroad Company, and to adopt as its charter the charter of the said Alabama and Tennessee River Railroad Company, with all of its amendments, and to have, possess, exercise, and enjoy all of its rights, franchises, powers, and privileges; and whereas said consolidated company did lawfully adopt said name and the said charter.” Another recital is: “And whereas the Selma, Rome & Dalton Railroad Company, the said party of the first part, is the owner of a certain railroad above mentioned, and which is hereinafter particularly described, and all the franchises, rights of way, track, ties,'rails, railway, culverts, structures, rolling-stock, and all other property appertaining to said railroad and acquired or to be acquired for the construction and operation thereof as hereinafter more particularly described and set forth, subject to the lien of such mortgages thereon as have heretofore been made by said above-named corporation and duly recorded.” The second mortgage, by express provision, therefore, is subject to the first mortgage, which had been given and duly recorded prior to the date of the second mortgage, as to all the property “acquired or to be acquired.” Our holding that the second mortgagees, under this view of the case, are estopped from attacking the validity and the priority of the first mortgage, under the facts stated, is to our minds so conclusive as to need no citation of the numerous authorities supporting it.

We are also of the opinion that as the bondholders secured by the second mortgage have brought their action for its foreclosure in a court of equity, they are subject to an equitable bar by reason of their laches in proceeding to establish the rights claimed by them. This equitable bar, though analogized as far as possible to' the statutes of limitations prevailing at law, nevertheless exists apart from and independent of such limitations. “The limitations herein provided [statutory limitations as to various actions] apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar whenever, from the lapsa of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.” Civil Code, § 4369. Again: “Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right.” Ib. § 4536. In Wilkes v. Phillips, 120 Ga. 728 (48 S. E. 113), it was said: “A person who is injured by fraud must be prompt in seeking redress, and he must prosecute his suit Avith diligence. Laches and neglect are always discountenanced. Nothing can call a court of chancery into activity but conscience, good faith, and reasonable diligence; and where these are wanting, the court is passive, and does nothing. A court of equity does not encourage stale claims, and a party may lose his right to complain of fraud by his delay.” (Citing Bish. Eq. § 260.) Some of the other cases in which this court has applied the equitable bar from the lapse of time and laches of the complainant are: DeLaigle v. Denham, 65 Ga. 482; Pierce v. Middle Georgia Land Co., 131 Ga. 99 (61 S. E. 1114); Basch v. Frankenstein, 134 Ga. 518 (68 S. E. 75); Aken v. Bullard, 134 Ga. 665 (68 S. E. 482); James v. Hill, 140 Ga. 739 (79 S. E. 782). In Alsop v. Riker, 155 U. S. 448, 1459, 461 (15 Sup. Ct. 162, 39 L. ed. 218), the holder of certain construction bonds was held to be barred on account of his inaction and laches for a period of about seven years. In the opinion the court said: “The record discloses no element of fraud or concealment upon the part of the trustees or of any of them. What they did Avas done openly and was known or might have been known by the exercise of the slightest diligence upon the part of every one interested in the property of the old corporation. The plaintiff unquestionably knew, or could easily have ascertained, before the trustees bought the property at the foreclosure sale — at any rate, before they transferred it to the new corporation — that their purchase would be, and was, exclusively for the benefit of certificate-holders interested in the trust. Although his bonds had not then matured, he could haA^e taken steps to prCTent any transfer of the property that would impair his equitable rights in it, or instituted proper judicial proceedings, of which all would be required to take notice, to have his interest in the property adjudicated.” The court then said, in effect, that the plaintiff was barred by the 'statute of limitations of New York, to wit, six years, but added: “But, without placing our decision upon that ground, and independently of the statute of limitations, the case is one in which a court of equity should refuse to interpose, because of laches upon the part of appellant in asserting the rights he now claims. Looking at all the circumstances, particularly the nature of the property, good faith demanded that if he intended to question the right of the trustees to acquire, hold, and transfer it for the exclusive benefit of certificate-holders, he should have done so by formal proceedings, commenced within a reasonable time after he became cognizant of all the facts. The case is one peculiarly for the application of the rule that equity, in the exercise of its inherent power to do justice between parties, will, when justice demands it, refuse relief, even if the time elapsed without suit is less than that prescribed by the statute of limitations.” There are many other decisions of that court to the same effect. We cite only one of them, however, that is, Waller v. Tex. & Pac. Ry. Co., 245 U. S. 398 (38 Sup. Ct. 142, 62 L. ed. 362), some of the facts there being quite similar to those in the present case. In the case last cited certain holders of bonds were refused relief on account of delay over ten years after their maturity, and forty years after their issue. In Scott v. Scott (Ala.), 80 So. 82, it was said: “As a matter of public policy, antiquated demands will not be considered by the courts, and, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into.” See cases cited in notes to that case in 88 Central Law Journal, 161. See Walker v. Warner, 179 Ill. 16 (53 N. E. 594, 70 Am. St. R. 85).

In the present case the sale of the property covered by both mortgages occurred in 1874, under foreclosure proceedings instituted by the trustees in the first deed of trust or mortgage, and by Shorter. Cowan, the purchaser, and his successors went into possession of the property soon thereafter, under deeds conveying full title, including the equity of redemption, and changed the names of the railroads as suceessoiship in ownership occurred; so that the Selma, Rome & Dalton Railroad Company practically went out of existence in name, as well as in fact. The Southern Railway Company became the purchaser of the property in July, 1894, and has since remained in continuous and open possession of the same, has spent large sums of money in Improving the railroad and its appurtenances, that part of the line between Dalton and Eome becoming a part of a trunk line from Chattanooga to the Atlantic Ocean, and the line from Eome to Selma becoming a part of another trunk line. Mortgages were placed on the properties, and debts incurred on account of them, there being no evidence that any of the owners, from Cowan down to the Southern Bailway Company, had any notice that the bondholders under the second mortgage expected to make any claim, until this suit was filed. The second mortgage was executed on July 1, 1870, and the bonds secured thereby matured in 1900, although there was a condition in them for earlier maturity upon default in the payment of interest, and taxes. The present action was instituted in 1910. No reason whatever is alleged for the delay. The Selma, Borne & Dalton Bailroad Company was always in default as to interest payments; and therefore, under the conditions in the bonds, the principal could have been declared due upon such default, and the second-mortgage bondholders could have instituted foreclosure proceedings even before the sale of the property under the foreclosure of the first mortgage. Yet they waited, without any excuse whatever, for about thirty-five years before instituting an action for the establishment of their claims.

There is one more question presented for decision, and that is, whether the petitioners in this case have the right to redeem the railroad properties covered by the second mortgage, and located in the State of Georgia, their counsel insisting that they have the right of redemption upon payment of the amount “as represented by the bid made by the purchaser at the foreclosure proceedings of the first mortgage, instituted in Floyd superior court, together with 7% interest thereon, from which amount there should be deducted [net?] earnings made from the property.” The auditor and the trial judge both held against the claim of the petitioners to redeem; and we concur in their decision. As already stated, “A mortgage in this State is only a security for a debt, and passes no title.” In Suttles v. Sewell, 105 Ga. 129 (31 S. E. 41), it was held: “Neither the defendant in fi. fa. nor any person representing him has a right to redeem property sold at a mortgage-foreclosure sale.” And in the opinion it was said: “A mortgagor in this State can not redeem after a sale has been had under a foreclosure judgment.” And it follows, of course, that his privies, such as assignees, and second mortgagees, can not do so. It does not appear either from the report published in that case, or from the record of file in this court, whether the foreclosure judgment and sale thereunder were had in a statutory proceeding to foreclose the mortgage, or in an equity suit. Why there should be any difference in respect of the conclnsiveness of the judgment of foreclosure in the two procedures is not apparent, though, in the view we take of this case, we are not required to render a decision as to that point. Nor do we decide whether the right of redemption, even where given by statute, is applicable after railroad properties in their entirety have been sold under mortgage-foreclosure proceedings. See Hammock v. Loan & Trust Co., 105 U. S. 77 (26 L. ed. 1111), and cases collated in 10 Roses’ Notes, 260. Nor are we called upon to decide whether the petitioners who hold only 172 of the six thousand second-mortgage bonds could in any event maintain the right to redeem; no» whether they could redeem on the terms they offer. We do decide, with confidence, that if the petitioners ever had the right of redemption, they have lost it by their laches in seeking to enforce it. As we have seen, the first mortgage was given in 1867, and the second in 1870. The first mortgage was foreclosed in equity, and a decree of foreclosure rendered in 1874. A commissioners’ sale under the decree, the confirmation thereof, and a deed to all the mortgaged property, were made in that year. The purchaser went immediately into possession, and he and those holding the properties under him by mesne conveyances down to the Southern Railway Company, which purchased in 1894, have all had open and continuous possession ever since. Large sums have been expended by the last-named company in betterments and improvements, and it has continuously and openly operated the railroad since its purchase. The second-mortgage bonds matured in 1900, with a provision, however, for accelerated maturity upon default in payment of interest, etc., as designated therein. The petitioners instituted their equitable petition to foreclose the second mortgage in 1910. They sought to amend it in 1914, by asserting their claim to redeem. Surely a court of equity will not aid them in the enforcement of such a stale claim; and this aside from any statute of limitations. It is needless. to cite the many adjudicated eases in support of our holding. It has been said that the right to redeem and the right to foreclose are mutual and reciprocal, and that when the one is barred the other is barred.

We have already decided that these holders of the second-mortgage bonds were estopped by laches from foreclosing the second mortgage. It must follow that they are also estopped by laches from asserting their claim to redeem.

In view of the holdings above announced, the court erred in not enjoining the petitioners from prosecuting the action.

Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.

All the Justices concur.

Case Details

Case Name: Southern Railway Co. v. Lancaster

Court Name: Supreme Court of Georgia

Date Published: Oct 1, 1919

Citation: 149 Ga. 434

Docket Number: Nos. 1122, 1123

Court Abbreviation: Ga.