Page:Federal Reporter, 1st Series, Volume 1.djvu/279

WEIiIiB V. SOUTHEBK MINK. BT. 00. 871 �Cause tried before the court without a jury. �H. Emmons and John B. Sanbom, for plaintiff. �H. J. Horn, for defendant. �Nelson, J. The defendant company waa organîzed after foreclosure and sale by the purohasers under an act of the legislature of the state of Minnesota, approved March 6, 1876. �This act contained the following proviso : "Provided how- ever, that suoh court (the court granting decree) shall provide in such foreclosure decree, or otherwise, that such pnrchaser or purchasera, shall fuUy pay ail sums due and owing by such defaulting and f oreclosed railroad company to any seryant or employe of such company." �In 1872 a suit was commenced to foreclose the Southern Minnesota Eailroad Company, as to part of its Une, by the trustees, under certain mortgages given to seoure the bonds issued by the company. On November 23, 1873, a receiver was appointed, who took possession of the mortgaged prop- erty. A decree of foreclosure was entered May 27, 1874, and on December 27, 1876, the decree was modified so as to allow a sale in the interest of second lien holders, subject to the lien of the first mortgage bondholders, and on sale being made, Pebruary 10, 1877, the defendant company was or- ganized by the purchasers. �The plaintiff brings this suit to recover compensation at the rate of $2,500 per annum, as secretary of the old company from June 1, 1874, at which time he claims he was elected, until June 19, 1876. At the time of his election the mort- gaged property, including 167 miles of completed railroad, was in possession of the receiver, and the stockholders had no right to select their own agents for the management of the corporation ; at least, the mortgaged property, �It is urged by the defendant that the act of March 6, 1876, which also containa this proviso, "that nothing herein con- tained shall be construed to change or impair the force of any decree of foreclosure heretofore made, or any of the tenus or provisions thereof," relieves this defendant from the oper- ation of this statute. It is unnecessary to decide this point, ��� �