Bankers Trust Co. v. Callaway
Opinion of the Court
Questions as to respective mortgage lien
In reaching his conclusion as to the effect of the invoked clause,
The trustee of the Consolidated mortgage is here complaining that in displacing that mortgage, and in reversing the order of the Consolidated and Income mortgages, the finding and decree produces a result contrary to what was plainly intended when the mortgages were written, and was plainly provided in them, and does violence to a reasonable common-sense construction of those provisions. '
We agree. In Ecker v. Western Pacific R. Corporation, 318 U.S. 448, 63 S.Ct. 692, 716, 87 L.Ed. 892, a controversy, as here, between a later refunding and an earlier first mortgage, the Supreme Court construed a true reservation clause,
“It is argued that this reservation permits the acquisition of rolling stock entirely free from the lien of the First Mortgage, unless acquired, as was not the case here, by the use of proceeds of the first mortgage bonds.
“We do not so view the reservation. It rather performs the function of authorizing the acquisition of equipment by equipment trust br other method and only to that extent displacing the lien of the First Mortgage arising from the after-acquired property clauses. The granting clauses show a purpose to subject to the First Mortgage all the property and equipment used in connection with the road. There is repeated general mention of the grant of rolling stock, of legal and equitable interests. * * *
“It is urged that the words ‘free from the lien hereof’ in the reservation clause must be given their literal significance. The argument must fail aside from the difficulties, inherent in a suggestion that these words, shall be lifted from context and forcibly applied without reference to an intention fairly to be drawn from three specific clauses of the mortgage and reinforced by the entire scheme of the document. * * *
“The inconsistency of such a result suggests that the phrases ‘free from the lien hereof’ and ‘superior to the lien of this indenture’ are in a sense correlative and were merely suited to the different title situations in the two methods of financing.”
For the much stronger reason that the so-called reservation clause here is not a reservation clause at all but merely refers back to reservations already made, the authority of the railway company to displace or subordinate the Consolidated mortgage must be sought not in the invoked clause of Section 7, but in the provisions of the granting clause dealing with after-acquired property. When that clause is turned to and it is read in the light of the conditions surrounding the making of the mortgages, of the language of Section 6 of Article 2,
It was recognized, too, that in the process of acquisition, some of the after-acquired properties would, or might, be constructed or acquired under circumstances making it necessary for the company, in the course, and as a part, of their acquisition, to assume, take subject to, or grant, prior liens, and provision was made in the after-acquired property granting clause in both Consolidated and Income mortgages for these contingencies. It ought, therefore, to be manifest that the invoked clause of Section 7, expressly referring as it does to “the rights or powers, hereinabove reserved” was not intended to, it could not, be read as adding to these powers. Rather it was a restatement and resummation of the conditions under which properties would or might be after ac
These aré the mortgages:
1. THE CONSOLIDATED - MORTGAGE.
Executed and delivered on Nov. 1, 1895, to secure an. issue of $18,500,-000.00 of bonds, this mortgage conveyed lines and leasehold interests then owned and operated by the company, and “Also, all the right, title, estate, interest, property and franchises of the Railway Company, of, in and to any and all lines of railway and branches by it hereafter acquired, held, owned or leased, or in which it shall obtain and hold any interest, subject, nevertheless, to all conditions upon which any such property or interest shall be acquired, and to all provisions of this Indenture concerning property herqafter acquired, and, as to any portion of such after-acquired property, subject also to the obligations, if any, secured by any pledge or mortgage of such property subject to which it may be acquired by the party of the first part hereto.”
Then followed in Section 7 of Article Tvto:
“But nothing expressed or implied in this Indenture is intended, nor shall it be construed, to limit the right or power of the' Railway Company, hereinbefore reserved, by the use of its credit or means, to construct or acquire, either free from, or subject to encumbrance, other lines of railway, branches or extensions, or interests therein, and to assume or create liens, or leaseholds therein on all railroads hereafter acquired and not described herein superior and prior to the lien hereof.”
2. THREE PREFERRED INCOME MORTGAGES.
Their interest payable only out of net earnings, the first was for $4,000,000.00; the second for $7,000,000.00; and the third for $4,000,000.00. Though they bore the same date as the Consolidated mortgage, they were declared to be subordinate to it. Each covered the same property, each contained . in its granting clause the same provision as to after acquired property, but being in' different and shorter form, none of them contained the long series of articles and clauses, including section 7, which it is claimed authorizes the displacement of the Consolidated mortgage and the reversal of the order of it and the Income mortgages.
3. THE REFUNDING AND GENERAL MORTGAGE.
Executed and delivered April 1, 1919, this mortgage, as to liens and leaseholds described as after acquired property, provided that the lien of the Consolidated mortgage was displaced in favor of its lien, recited, that all the railroads and leaseholds listed as after acquired property “have been acquired by the company since the execution and delivery of the Consolidated mortgage dated Nov. 1, 1895, and have from time to time, as acquired become subject to the lien of the Consolidated mortgage”. It quoted the clause from section 7 of Article two of the Consolidated mortgage quoted hereinabove and then declared:
“Under and by virtue of the aforesaid provisions * * * the Railway Company has elected and declared, and does hereby elect and declare, for the benefit of the bonds secured hereby, that this indenture is and shall be a lien superior and. prior to the lien of the said Consolidated Mortgage, upon all and singular the railroads and leaseholds with their appurtenances listed and described in the granting clauses hereof under said Parcels 3 and 4, and upon all property of every nature and kind which it shall hereafter acquire, and shall subject, or has by this indenture agr.eed to subject, to the lien hereof; so that this indenture shall be a lien on all such railroads, leaseholds and property in all respects superior and prior to the lien of every other mortgage thereon except (1) the income mortgages, * *
These are the facts which determine the answer to the question:
(1) As originally issued on Nov. 1, 1895, Consolidated primed the Preference mortgages.
(2) After the execution of those mortgages the company during the period from Jan. 1, 1897, to Feb. 5, 1907, acquired or constructed the sections in dispute, and as each was acquired it came
(3) On April 1, 1919, the General and Refunding mortgage was discharged and the company executed the Refunding and General mortgage described in the note above.
“Under and by virtue of the aforesaid provisions * * *, the Railway Company has elected and declared, and does hereby elect and declare, for the benefit of the bonds secured hereby, that this indenture is and shall be a lien superior and prior to the lien of the said Consolidated Mortgage, upon all and singular the railroads and leaseholds with their ¿appurtenances listed and described in the granting clauses hereof under said Parcels 3 and 4, and upon all property of every nature and kind which it shall hereafter acquire, and shall subject, or has by this indenture agreed to subject, to the lien hereof; so that this indenture shall be a lien on all such railroads, leaseholds and property in all respects superior and prior to the lien of every other mortgage thereon except (1) the income mortgages, * *
“But nothing express or implied in this indenture shall be construed to limit the right or power of the Company or any successor or purchasing corporation, which right and power is hereby expressly reserved, by the use of its credit Or free funds or by the use of First Mortgage Bonds delivered to the Company or any successor or purchasing corporation as in this indenture provided to reimburse the Company or any such successor or purchasing corporation for expenditures theretofore actually made out of its free funds, to construct or acquire free from the lien hereof lines of railroad, extensions or branches or interests therein, equipment, stocks, bonds or other securities or other property, rights, franchises, immunities or privileges provided the same shall not be lines of railroad, extensions or branches or interests therein, equipment, stocks, bonds or other securities, or other property, rights, franchises, immunities or privileges (a) on account of the purchase, acquisition or construction whereof or work whereon First Mortgage Bonds shall be authenticated and delivered or their proceeds or other cash deposited hereunder shall be paid out as herein provided; * *
“Sixth. That all lines of railway and property of every kind, and all interest therein, when and as and to the extent hereafter acquired, as above provided, out of, or from bonds or the proceeds of bonds secured by this Indenture, shall, without any further conveyance or assignment, immediately upon such acquisition become, and be subject to the lien of this Indenture as fully and completely as though now owned by the Railway company, and expressly and specifically conveyed by, and embraced in, the granting clauses of this Indenture; and that at all times hereafter it will execute and deliver any and all such further assurances and conveyances as the Trustee may reasonably direct or require, for-the purpose of expressly and specifically subjecting any and all such after-acquired roads or properties to the hen of this Indenture.”
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