MORTGAGE REDEMPTION - continued. taxes, sums paid for insurance and repairs, etc., less the rents and profits during the possession of the senior incumbrancer. McCormick v. Knox, 105 U. S. 122. 4. Twenty years' possession under a de facto foreclosure of a mortgage is a bar to redemption, although the proceedings to foreclose were irregu lar, unless the mortgagor accounts for the delay, and shows a valid right to redeem. Slicer v. Pittsburg Bank, 16 How. 571. 5. An account of rents and profits is not necessarily incident to a redemption by the mortgagor; his laches may operate as a waiver of any right thereto. Russell v. Southard, 12 How. 139. Decisions of State Courts respecting Redemp- 1. sideration — By Failure to record.] It is no 2. One who has been induced to mortgage land to secure his subscription to the stock of a railroad company cannot repudiate the mortgage on proof that such statements were made to him as an inducement for his subscription as that the road would pay thirty per cent dividend, that he would get the products of his land to market much more cheaply, etc., no misrepresentation of STATE LAWS, existing facts being shown. Sawyer v. Prickett, 19 Wal. 146. See CONTRACT· IMPAIRMENT OF OBLI RULES OF DECISION, 141. State Laws fixing Interest to be paid on Redemption, Rules of Decision in Federal Courts. MORTGAGE SUBROGATION - Between Joint Mortgagors Senior and Junior Incumbrancers.] If three persons mortgage their joint property to indemnify an accommodation drawee of bills, and one of them be compelled to pay the bills, the mortgage, on notice to the mortgagee, will stand in equity as security to the payer for repayment of two thirds of the sum paid. Pratt v. Law, 9 Cranch, 456. And see Campbell v. Pratt, 5 Wheat. 429. 2. Although a junior incumbrancer, on payment of a prior incumbrance, has a right to be subrogated to the place of the prior incumbrancer, that right may be controlled by acts of the parties indicating a different intention. United States Bank v. Peter, 13 Pet. 123. Equitable Owner of Land who has paid a See EJECTMENT-IN GENERAL, 25. - MORTGAGE — VALIDITY — Validity as affected by Want of Consideration — By Failure to record. See pl. 1-4. 3. Where one takes a mortgage to secure a supposed indebtedness of the mortgagor purchased from his creditor by the mortgagee, and the indebtedness has, in fact, been paid, although mortgagor and mortgagee both suppose otherwise when the mortgage is taken, the mortgage is invalid as against the mortgagor's other creditors. Wood v. Weimar, 104 U. S. 786. 4. As between the parties to a mortgage of land in Louisiana and their heirs, the failure to inscribe or to reinscribe it does not affect its validity. Cucullu v. Hernandez. 103 U. S. 105. 5. etc. Of subsequently acquired Property and Mortgages to secure Future Advances, Property subsequently severed.] Mortgages may be given to secure future advances and contingent debts, as well as debts that are due and certain. United States v. Hooe, 3 Cranch, 73; Conard v. Atlantic Insurance Co., 1 Pet. 386: Conard v. Nicoll, 4 Pet. 291; Lawrence v. Tucker, 23 How. 14. 6. Thus, a mortgage given to secure a note for five thousand five hundred dollars, and future advances to the extent of six thousand more, is a standing security for eleven thousand five hundred, if so intended and duly recorded, and may be valid for that amount against subsequent puramount advanced at the time the mortgage and chasers or incumbrancers, without regard to the note were executed. Lawrence v. Tucker, 23 How. 14. 7. A mortgage purporting to secure the repayment of a sum certain may stand as security for the repayment of part of that sum, and as indemnity to the mortgagee for liabilities, if there be no fraudulent intent. Shirras v. Caig, 7 Cranch, 34. 8. A mortgage of property yet to be acquired by the mortgagor may be valid and attach to the property as it comes into the mortgagor's possession; e. g., of a railroad yet to be constructed, and of rolling-stock and other property appurtenant thereto yet to be purchased. Pennock v. Coe, 23 How. 117. 9. Aud the lien of such a mortgage will be superior to that of a subsequent mortgage or judgment. Ib. 10. The lien created by a mortgage on crops not in existence attaches when the crops are grown. Butt v. Ellet, 19 Wal. 544. 11. Growing timber is a part of the realty, and covered by a mortgage thereof; and the lien of the mortgagee is not impaired by a severance without his consent. Hutchins v. King, 1 Wal. 53. 12. Effect of Judgment of Validity] If the validity of a mortgage be tried and adjudicated in chancery, the decree binds parties and privies in an action of ejectment on the same mortgage. Smith v. Kernochen, 7 How. 198. Badge of Fraud-That Mortgage covers more than enough to pay the Debt, not. See FRAUDULENT CONVEYANCE, 6. Conditioned to save harmless Accommodation Indorser of Subsequent Notes — Prima Facie valid. MUNICIPAL BONDS -ACTION - When holder may sue - Auditing as a Prerequisite to Action - Pleading Evidence Burden of Proof— Judgment as a Bar.] By the statutes of Illinois, and the decisions of her courts, municipal bonds payable to bearer are transferable by delivery, and the holder thereof can sue on them in his own name. Roberts v. Bolles, 101 U. S. 119; Ottawa v. National Bank, 105 U. S. 342. 2. A claim against a county on bonds, regularly issued, under authority, inter alia, from the county court, may be deemed audited by that court when the bonds are issued; and no further presentment for allowance is necessary as a prerequisite to an action on the bonds, although the state law require the auditing of all claims against counties. Green County v. Daniel, 102 U. S. 187. 3. In a suit on negotiable municipal bonds, the declaration need not aver the performance of in the performance of such conditions are propconditions prerequisite to their issue. Defects erly matter of defence. Lincoln v. Cambria Iron Co., 103 U. S. 412; Clay County v. Society for Savings, 104 U. S. 579. 4. Where, in assumpsit on municipal bonds, the declaration alleges their issue and their purchase by the plaintiff for value before maturity, a plea of the general issue puts in issue the questions of authority to issue, bona fides, and notice. Chambers County v. Clews, 21 Wal. 317. 5. In a suit against the maker of negotiable paper, the plaintiff may show himself to be a bona fide holder for value by showing that a previous holder was such. Montclair v. Ramsdell, 107 U. S. 147. 6. Where the defendant in an action on a negotiable instrument shows strong circumstances of fraud in its inception, the burden is on the plaintiff of proving that he purchased for value before maturity. Smith v. Sac County, 11 Wal. 139. 7. The burden of proving that a subscription by a city to the stock of a railroad company was "ratified by a majority of the taxpayers," at a poll to be opened for that purpose, is met by introducing in evidence the poll-books containing the name of each voter and a record of his vote, such books being authenticated by the certificate of the judges and clerks of the election, stating the result and specifying the number of votes for and against the subscription, the city charter providing that taxpayers only should vote. It MUNICIPAL BONDS — Actions thereon - In gen- is not necessary to go further and show that a eral. majority of those voting were in fact taxpayers. Hannibal v. Fauntleroy, 105 U. S. 408. 8. The plaintiff in an action on municipal bonds is not bound to show himself a bona fide MUNICIPAL BONDS- - ACTION - · continued. holder for value where the defence relied on is an irregularity in the conduct of the election in pursuance of which they were issued. The case is not one where, fraud or illegality in the inception of a negotiable instrument being shown, the burden of proving himself a bona fide holder for value rests on the plaintiff. Pana v. Bowler, 107 U. S. 529. 9. A judgment against the plaintiff in a suit on coupons originally attached to municipal bonds, grounded on a failure to prove that he gave value, the bonds being void in the hands of one not a bona fide holder for value, does not estop him from showing, in another action on other coupons originally attached to the same bonds, and on other bonds of the same series, that he gave value for such other bonds and Coupons. [CLIFFORD, J., dissenting.] Cromwell v. Sac County, 94 U. S. 351. 10. A finding in an action on coupons, that the plaintiff is the holder and owner, does not estop the defendant, in a subsequent action thereon by another party, from showing equitable ownership throughout in the second party plaintiff, the finding being conclusive only of the legal title. Ib. Circuit Court Suit by Holder who has taken See CIRCUIT COURT — Jurisdiction, 128. MUNICIPAL BONDS - - COUPONS — continued. the bonds. Knox County Commissioners v. Aspinwall, 21 How. 539; Knox County Commissioners v. Wallace, Id. 546; Thomson v. Lee County, 3 Wal. 327; Kenosha v. Lamson, 9 Wal. 477. 6. The declaration in such case, by way of inducement, may recite the bonds in a general way, explaining and bringing into view the relation of the coupons to the bonds, and does not thereby become a declaration on the bonds. Kenosha v. Lamson, 9 Wal. 477. 7. Coupons of municipal bouds bear interest from the day when they are payable. Walnut v. Wade, 103 U. S. 683. 8. One who recovers in an action on coupons of municipal bonds payable to bearer is entitled to interest and exchange at the place where, by their terms, they are made payable. Gelpcke v. Dubuque, 1 Wal. 175; Pana v. Bowler, 107 U. S. 529. 9. And a failure to present them for payment does not prevent the running of interest, it not appearing that the municipality had money ready to pay them at the time and place designated in them. Walnut v. Wade, 103 U. S. 683. 10. The fact that they are made payable at a particular place does not make it necessary to aver or prove presentation there for payment. Ib. 11. Overdue and unpaid interest coupons at125-tached to a municipal bond not yet due do not render the bond and the subsequently maturing coupons dishonored paper, so as to subject them, in the hands of a purchaser for value, to defences good against the original holder. Cromwell v. Sac County, 96 U. S. 51; Indiana & Illinois Railway Co. v. Sprague, 103 U. S. 756. Coupons- Action on - Period of Limitation. See LIMITATION-STATUTES, 11, 12. Municipality sued on Bonds not estopped to show Invalidity of Statute under which they were issued. See STATUTE ENACTMENT, 14. Suit to have Bonds declared invalid · - Removal from State Court. See REMOVAL OF CAUSES, 29. MUNICIPAL BONDS - Negotiability Interest What Plaintiff must show sentment Bond not affected by Dishonor of Coupon.] Interest coupons, separable from the bonds to which they belong, and payable to bearer, are negotiable. Thomson v. Lee County, 3 Wal. 327; Walnut v. Wade, 103 U. S. 683. 2. And pass by delivery. Murray v. Lardner, 2 Wal. 110; Hotchkiss v. Shoe & Leather National Bank, 21 Wal. 354; Walnut v. Wade, 103 U. S. 683. 3. And a purchaser thereof in good faith is unaffected by want of title in the vendor. Murray v. Lardner, 2 Wal. 110; Hotchkiss v. Shoe & Leather National Bank, 21 Wal. 354. 4. A coupon payable to the holder is pavable to the bearer. The terms are equivalent. Koshkonong v. Burton, 104 U. S. 668. 5. The holder of coupons separable from the bonds to which they belong, may sue thereon without producing or showing any interest in Liability of County on Township and Pre- to the stock of a railroad corporation may be cinct Bonds. exercised in favor of a corporation formed by consolidation with another corporation, the func See pl. 84-87. Recitals in Bonds pel and otherwise. See pl. 88-112. Ratification by Municipality- What consti. County v. Thomas, 94 U. S. 682 [MILLER, J., Effect by Way of Estop. tions of the consolidated corporation and the route of its road being substantially similar to those of the original corporation. Scotland tutes. See pl. 113-117. Ratification by Legislature-Power-Effect. See pl. 134-136. Modification of Contract. See pl. 137-139. Who protected, as dissenting]; East Lincoln v. Davenport, Id. 801; Schuyler County v. Thomas, 98 U. S. 169; Wilson v. Salamanca, 99 U. S. 499; Empire Township v. Darlington, 101 U. S. 87; Menasha v. Hazard, 102 U. S. 81; Unity v. Burrage, 103 U. S. 447; Harter v. Kernochan, 103 U. S. 562; Bonham v. Needles, 103 U. S. 648; New Buffalo v. Cambria Iron Co., 105 U. S. 73; Chickaming v. Carpenter, 106 U. S. 663; Bates County v. Winter, 112 U. S. 325. 5. So, where the corporation in whose favor What consti- the subscription is made transfers its franchises, after subscription is made the bonds may issue, notwithstanding. Henry County v. Nicolay, 95 U. S. 619; Ray County v. Vansycle, 96 Ü. S. 675. Liability notwithstanding Invalidity of Bond. See pl. 159, 160. 1. Issue In Aid of Railroads - What Company entitled to Benefit of Subscription · Effect of Division, Consolidation, etc.] Authority given by the voters of a county, pursuant to statute, for a subscription to the stock of a certain railroad company, does not authorize a subscription to stock of a company created by a division of the original road. Marsh v. Fulton County, 10 Wal. 676. 2. Although a subscriber for stock in a railroad company may be released by a subsequent fundamental alteration of its charter, or a radical change in its organization or purposes, this rule is inapplicable where the change is contemplated by the charter or by the general law, as, for instance, a county having subscribed to the stock of a company authorized both by its charter and by the general law to effect a consolidation with another company, cannot escape liability on bonds issued after the consolidation in payment of a subscription made before. [MILLER and DAVIS, JJ., dissenting.] Nugent v. Putnam County Supervisors, 19 Wal. 241. 3. Where a township is empowered to subscribe for stock of a railroad company when authorized by the consent of a certain number of voters, the authority, under such consent, of officers charged with the duty of making the subscription, is, in effect, revoked by a consolidation of the company with another, although the consolidation is made under a statute declaring the new company entitled to all the rights of the old companies, the subscription not having been made, and no vested rights having accrued. Harshman v. Bales County, 92 U. S. 569; Bates County v. Winters, 97 U. S. 83 [CLIF FORD, SWAYNE, and STRONG, JJ., dissenting]. 4. Power given to municipalities to subscribe 6. And it makes no difference that the corporation with which the consolidation is effected is a foreign corporation. Scotland County v. Thomas, 94 U. S. 682; Schuyler County v. Thomas, 98 U. S. 169; Wilson v. Salamanca, 99 U. S. 499; Menasha v. Hazard, 102 U. S. 81. 7. A municipal corporation, when sued by bona fide holder for value of bonds issued in aid of a certain railroad company, cannot defend on the ground that when the election under the authority of which the bonds were issued was held and when the bonds were issued no company of that name existed, it being created afterwards by consolidation with a company existing at the time, the consolidation having been authorized and effected ten years before, and the county having received, held, and sold its stock. Leav enworth County v. Barnes, 94 U. S. 70. 8. A statute authorizing a city to lend its credit to a specified railroad company, and to "any other railroad company duly incorporated and organized" which in the opinion of the common council are entitled to such aid, authorizes a loan of credit to a company incorporated and organized after, as well as to one incorporated and organized before, its enactment. James v. Milwaukee, 16 Wal. 159. 9. Where the charter of a railroad company authorized the company to borrow money, and a county in which the greater part of the road was to lie to sell certain of its lands to aid in its construction, and, by a subsequent section, authorized "any county through which" the road might run and " every county through which any other railroad" might run, with which that road might " be joined, connected, or intersected," to aid in the construction "of the same or of such other road" with which it might so connect, and, to that end, provided that the provi MUNICIPAL BONDS IN GENERAL con- MUNICIPAL BONDS IN GENERAL tinued. sions of the prior sections should "extend, include, and be applicable to every such county and every such railroad," it was held, another company having been chartered to build a road to run on from the terminus of the road of the former company through an adjoining county, and the former company having undertaken its construction, that the authority and the contract for the construction of the second road formed a connection within the meaning of the statute, and, so far, met the conditions on which the adjoining county might mortgage its lands. Kenicott v. Wayne County Supervisors, 16 Wal. 452. 10. Where a charter of a railroad company authorized counties through which the road might pass to subscribe to its stock and to issue bonds in payment therefor, neither the location nor the building of the road within a county was a condition precedent to the issuing of its bonds. Woods v. Lawrence County, 1 Black, 386. 11. Nor can an omission of the names of the counties in the act be construed to indicate an assent by the legislature to a want of power to authorize subscriptions by counties through which the road might not pass. lb. 12. A power given to a city to take stock in any corporation for making "a road or roads to said city," was held to authorize a subscription for stock in a corporation organized to construct a road between two other cities in extension of a road leading directly from the nearer of those cities to the city subscribing. Van Hostrup v. Madison, 1 Wal. 291. 13. Where a statute authorizes subscriptions to the stock of a certain railroad company whose road is not yet located, by "any county in which any part of the route of said railroad may be," a county through which, under the language used to fix the location, the road may run, and, in fact, when built, does run, is empowered to subscribe. Callaway County v. Foster, 93 U. S. 567; Schuyler County v. Thomas, 98 U. S. 169. 17. Where, under a statute authorizing townships to issue bonds in aid of railroads which it was proposed to build “ into, through, or near them, bonds were issued in aid of a road which it was proposed to build nine miles away, it was held, the bonds reciting on their face a compliance with the statute, the qualified voters having voted in favor of their issue, and the township having paid three years' interest on them, that the plaintiff, a bona fide holder for value, was entitled to recover on them. Kirkbride v. Lafayette County, 103 U. S. 208. 18. Under a contract between a city and a railroad company, under which bonds of the city are to be delivered to the company on the building of a railroad and bridge within a certain time, the assignee of the company is entitled to the bonds on doing the work, and, the bridge affording the city adequate communication, it is immaterial that it was built on the line of another road entering the city. Winona v. Cowdrey, 93 U. S. 612. 19. Subscription and Agreement to subscribe.] The power of a municipal corporation to subscribe to the stock of a railroad company includes the power to agree to subscribe, and a resolution agreeing to subscribe may be effectual to bind the municipality, even though no subscription on the books of the company is made, where the agreement is, in effect, a subscription, no further action being contemplated, and it being recognized and acted on as such. Moultrie County v. Rockingham Ten-Cent Savings Bank, 92 U. S. 631; Cass County v. Gillett, 100 U. S. 585. 20. The liability of a county on bonds issued in payment of a subscription in aid of a railroad does not depend on a formal subscription, if the county supervisors have adopted a resolution declaring the subscription made, and have been notified of its acceptance by the company, and if, furthermore, the county has accepted stock certifi14. Under a statute which, like the Kansas cates, voted on them, and levied a tax for interstatute of February 10, 1865, authorizes sub-est. Nugent v. Putnam County Supervisors, 19 scriptions by any county "to, into, through, | Wal. 241. from, or near which. any railroad is or may 21. Where, however, after an election authorbe located," the election required may be held izing a subscription to the stock of a certain comand the subscription made before the actual loca-pany, the county court authorized an agent to tion of the road, it being, in fact, located and built before the issue of the bonds. Johnson County Commissioners v. Thayer, 94 U. S. 631. 15. Nor, under such a statute, is it material that no particular railroad company was named in the submission to the voters, the submission describing the route contemplated with reasonable particularity. 1b.; Block v. Bourbon County Commissioners, 99 U. S. 686. 16. Nor can it be objected that the issue of bonds was to a corporation of another state answering the description given in the submission on which the vote was had. Block v. Bourbon County Commissioners, 99 U. S. 686. make the subscription on the books of the company, and to have copied on the books the order of the court, to show the conditions on which the subscription was made, and to report to the court, and the agent reported that he had made no subscription because the company had no books, and for other reasons, and the court, by its order which recited that the subscription had been made, directed the issue of bonds in payment of the subscription to be issued to a company formed by a consolidation of the company to which the subscription was voted with another company, the agent, as directed by the order, making the subscription on the books of the new company, it was |