United States. Circuit Court (4th Circuit), Robert William Hughes, Robert Morton Hughes - 1883; page 641

Opinion.


road, which was followed on the same day by the adoption of a similar resolution by the board of directors. The mortgage, securing bonds to the amount of $670,000, was executed October 1, 1876, by the president affixing the seal of the company, and signing, "The Spartanburg & Asheville Railroad Company, by D. R. Duncan, president." W. K. Blake signed it as secretary and treasurer of the company, and W. H. Inman and John B. Cleveland, the trustees, also signed it and affixed their seals. Afterwards, but prior to September 28, 1878, two of the directors affixed theii hands and seals. This mortgage was duly registered in Spartanburg county, South Carolina, June 20, 1877. The master finds that the mortgage was duly registered in Buncombe county, North Carolina, November 25, 1878; in Henderson county, North Carolina, November 23,1878; in Polk county, North Carolina, November 22,1878. Six hundred and fortytwo thousand dollars of the bonds passed out of the hands of the company; $4,500 becoming the property of plaintiff V. R. Tommey. Six hundred and fifteen thousand dollars were held as collateral. The mortgage provided that the whole amount of the bonds should fall due upon default in the payment of interest for six months. Default was made, upon which this suit was brought. Fry & Deal entered into a contract with the Spartanburg & Asheville Railroad Company, June 2, 1877, to build four trestles on the line of the road in Polk county, North Carolina, and the work was completed June 17, 1878. Fry was a mechanic, and worked himself on the trestles, and superintended the labor. The firm furnished the materials. They knew at the time the work was done of the existence of the mortgage. They filed their lien in Polk county, North Carolina, August 3,1878, for $6,335.16, and on October 16, 1878, instituted proceedings in the superior court of that county to enforce their lien. John Garrison contracted, June 2, 1877, to build "Mill Creek Trestle," which he completed about the seventeenth of February, 1878. He filed a lien in Polk county, April 2, 1878, and began an action to enforce it August 10, 1878. Garrison was a mechanic, and did some of the work, but his Vol. Iv—80.

Opinion.

principal labor was as a contractor, to superintend the mechanics and laborers employed under him. T. G. Williamson was one of the engineer corps of the company, and was due $911.40 from March 1878. He filed his lien in Polk county, June 4, 1878. There is a balance due Rice & Coleman for work done since October 1, 1876, of $22,935.23, from May 1, 1878. Coleman was a stockholder in the company but was not present at the meeting which authorized the mortgage. They knew of the making of the mortgage, and received, after October 1, 1876, about $62,000, in county bonds and cash, from the company, on this contract. While engaged in grading the road they bought the land over which about two miles of their contract extended, and the company having neglected to have the right of way through the land condemned according to law, they assert titles to the road-bed and superstructure on their land. E. Clayton was a stockholder of the company. There is due him the sum of $3,316.87-, for work done on the South Carolina division of the road before August 1876. Another contract was made with him prior to October 1, 1876, on which there is a balance due of $23,661.25 from November 1, 1877. He was present at the meeting which authorized the mortgage and did not vote against it. He claims title to a portion of the road-bed and superstructure, similar to that of Rice & Coleman. The two last named parties claim statutory liens. The commissioners of Buncombe county were stockholders, and became parties defendant.


Chandler §. Thompson, Bynum $ Grier, J. H. Rion and Mr. Brown, for complainants and trustees.


Evans, Bobo Carlisle, Shipp $ Bailey, J. H. Merriman, T. Coleman, W. J. Montgomery and M. E. Carter, for defendants