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Opinion of the court.
made payable to bearer, are transferable by delivery and are subject to the same rules and regulations, so far as respects the title and rights of the holder, as negotiable bills of exchange and promissory notes. Holders of such instruments, if the same are indorsed in blank or are payable to bearer, are as effectually shielded from the defence of prior equities between the original parties, if unknown to them at the time of the transfer, as the holders of any other class of negotiable instruments.*
Admitted, as it is, that the corporation defendants possessed the power to subscribe for the stock and to issue the bonds, it is clear that the plaintiff is entitled to recover upon the merits, as the repeated decisions of this court have established the rule that when a corporation has power under any circumstances to issue negotiable securities the bona fide holder has a right to presume that they were issued under the circumstances which give the requisite authority, and that they are no more liable to be impeached for any infirmity in the hands of such a holder than any other com-. mercial paper.
IV. Actions on simple contracts are barred by the limitation law of that State unless commenced within five years next after the cause of action accrued, and the second plea was filed as a bar to the action under that section of the statute of limitations, but the bouds described in the declaration are specialties vot falling within that section of the statute. On the contrary, suits upon bonds may be maintained if commenced at any time within fifteen years ext after the cause of action accrued, and it is well.settled law that a suit upon a coupon is not barred by the statute of limitations unless the lapse of time is sufficient to bar also a suit upon the bond, as the coupon, if in the usual form, is but a repetition of the contract in respect to the interest, for
* Moran v. Miami Co., 2 Black, 722; Mercer County v. Hacket, 1 Wal.
+ Gelpekev. Dubuque, 1 Wallace, 203; Knox Co. v. Aspinwall, 21 Howard, 539; Supervisors v. Schenck; 5 Wallace, 784; Bissell o. Jefferson ville, 24 Howard, 299.
the period of time therein mentioned, which the bond makes upon the same subject, being given for interest thereafte. to become due upon the bond, which interest is parcel of the bond and partakes of its nature and is not barred by lapse of time except for the same period as would bar a suit on the boud to which it was attached.* Coupons are substantially but copies of the stipulation in the body of the bond in respect to the interest, and are so attached to the bond that they may be cut off by the holder as matter of convenience in collecting the interest, or to enable him to realize the interest due or to become due by negotiating the same to bearer in business transactions without the trouble of presenting the bond every time an instalment of interest falls due.
For these reasons we are of the opinion that the ruling of the Circuit Court was correct.
BIGLER v. WALLER.
1. Where the terms of a mortgage or deed of trust require that before any
foreclosure or sale under it is made, sixty days' notice shall be given in
certain newspapers, a sale without the notice conveys no title. 2. Although a mortgagee who takes possession of the mortgaged premises,
under what purported to be a sale of the property, may be liable for rents and profits of the estate notwithstanding that the sale was wholly void, yet to be so liable he must have bad such a possession as gives an actual enjoyment and perpancy of profits. A false claim of title is of
itself insufficient. B. A mortgagor, who on a bill attempting to charge his mortgagee with
reception of profits of the estate because of a foreclosure which, though void for requisite notice of the intended sale in foreclosure, vas gone through with in form, has had his bill dismissed, with a decree that he is himself still owner and liable for a balance of unpaid inortgage-noney, cannot object, on error, that the decree did not order the heirs of the formal purchaser (the purchaser hiniself being dead) to convey, if the bill have not made such heirs parties, or if they have not been called ir.
* 2 Revised Statutes of Kentucky, 126 und 127; The City v. Lamson, 9 Wallace, 483.
Statement of the case
4. However, the execution of the decree for the payment of the mortgage
inoney may be stayed in such case till an outstanding title made by the proceedings purporting to have been in foreclosure shall have been
brought back to the mortgagor. 5 A decree ordering the payment in coin of a debt contracted before the
passage of the Legal Tender Acts reversed on the authority of the Legal Tender Cases (12 Wallace, 457).
APPEAL from the Circuit Court for the District of Virginia; the case being thus:
On the 20 April, 1853, Waller, of Virginia, made an agreement in writing with one Bigler, of New York, to sell to him for $30,000 an estate on the York River, Virginia, consisting of about 2100 acres, to be paid for in successive annual payments through a term of ten years. The agreement contained this covenant:
“Said Waller will allow said Bigler to sell such portion of the land as he may see fit, from time to time; the said Bigler paying over to said Waller such proceeds of sales as will afford ample security for the liquidation of the residue of the debt.”
On the 10th of May, 1853, Bigler paid $5000 of the purchase-money, gave his bond for the balance, $25,000, took a deed of the property, and at the same time took possession of the estate. On the 22d day of June following, he made a deed of trust or nortgage to one Saunders (like Waller, of Virginia) to secure the payment of the bond. This deed provided for the sale of the estate in default of payment according to the terms of the bond; but it provided also that in case of sale the trustee shall give sixty days' notice in newspapers in Richmond and in the city of New York. There was nothing said in either the deed of May 10th to Bigler, nor in the deed of trust to Saunders to secure the purchasemoney, of the covenant contained in the agreement of April 2d about Waller's allowing Bigler to sell any portions of the estate.
Bigler having taken possession, as already said, made improvements; wharves, mills, a hotel, store, church, schoolhouse, &c., and laid out a village. In the autumn of 1853 and spring of 185+ he had offers for portions of the estate
Statement of the case.
(village lots), its most central and valuable part, and applied to Waller to release the mortgage lien; a matter which, in consequence of the opinion expressed by some persons whom he consulted, that the security might be impaired, Waller refused to do. Releases, however, of other and more considerable parts, situated less centrally, were given on the price of them being paid over.
Bigler fulfilled his agreement about annual payments until May 10th, 1861, at which date there remained $13,000 unpaid on the bond, of the original purchase-money. Subsequently to this, the war having now broke out, and Bigler having remained in the North, the rebel army, then in that part of Virginia, took possession of this estate; and about the 1st of March, 1862, Waller caused a sale of the estate to be made at public auction on the premises; the sale being in professed execution of the deed of trust and for nonpayment of the debt due on the purchase; but no notice of any kind having been in newspapers of either Richmond or New York. Waller bought it in himself for $17,000, and took a deed thereof from the trustee, Saunders, cancelled the bond ($13,000), and gave his notes for the balance of the $17,000 · purchase-money. While the rebel army was in possession of the estate a certain Drake, one of its officers, burned two mills and a valuable wharf, and greatly injured the houses aud orchards. This destruction occurred a mouth after Waller's purchase; but Waller was not attached in any way to the rebel Army of the Peninsula, was away at this particular time, and was not shown to have comselled or approved, or even known of what was done. Whether Waller went into actual possession, or whether he bad ever been on the estate after the sale, or whether he ever received any of its rents or issues or profits, did not appear, and he denied that he ever was iu such possession or ever had received any profits. But it appeared that he had settled with the Confederate government for the waste committed by them while they were in possession thereof, which damage amounted to more than thirty thousand dollars.
Though be sometimes spoke of himself as owner, lie fre
Statement of the case.
quently declared that he held only to protect the property from seizure and confiscation, as Bigler's, a Northern man's, by the Confederate goverument; and that when the war closed he should offer the property again to Bigler; he paying the purchase-money.
On the suppression of the rebellion Bigler went to Virgivia and resumed possession of his property. He saw its devastated condition and learned of the sale that had been made in professed execution of the trust. Ou the other hand Waller came North and sued Bigler in one of the New York courts for the balance, $13,000, which was due to him on the outbreak of the rebellion.
Hereupou Bigler filed a bill in equity in the court below, It set out the admitted history of the case as already given; that is to say, the agreement of April 2, 1853, for the sale of the land, the subsequent sale on the 10th of May, the execution of the deed of trust, the possession taken by the complainant, the improvements made, the abandonment of possession in 1861, and its resumption in 1865. It charged that the complainant made contracts for the sale of portions of the land, and tendered to Waller the proceeds of such sales sufficient to afford ample security for the liquidation of the part of the residue of the debt for the purchase-money then due, but that Waller declined to ratify the sales, in disregard of his contract, and greatly to the damage of the complainant; that about September 1, 1861, Waller authorized Saunders, the trustee, to sell the lands, and that a sale was then made to Waller himself, but without such publication as was required by the deed of trust; that out of the proceeds of sale the trustee satisfied the complainant's obligation, and failed to pay over the balance; that Waller then took possession, both of the land and of the personal property thereon, and applied the proceeds of the personalty to the payment of the complain unt's debt; that he received large bums for rents of the real estate, and also received compensation from the Confederate authorities for the destruction of the property. The bill further charged the pendency of the suit in New York, and that Saunders, the trustee, was