The Mercantile Trust Company v. The Lamoille Valley Railroad Company. the bill contained a special prayer for relief that would interfere with the possession and disposition of the property by the State Court, and that it contained a general prayer that would cover other relief, said: "Under this prayer for general relief, if there was any decree which the Circuit Court could render for the protection of the right of the plaintiffs, and which did not enjoin the defendants from taking possession of the church property, and which did not disturb the possession of the Louisville Chancery, that Court had a right to hear the case and grant that relief." The authority of that case has not been questioned by the Court which decided it, and it is not open to question here. In this case, as in that, some of the relief which the bill might cover would interfere with the possession of the State Court, and some of it would not. The execution of an order of sale, under the provisions of the mortgage, or of an order for the delivery of possession, under other provisions, would have that direct. effect, and, perhaps, the general prayer for relief would cover either; but, as before mentioned, it is clear that the plaintiff cannot have such relief. None can be had except that which will not interfere with the present possession. A decree of foreclosure would not. It would only cut off the equity of redemption of the plaintiff's bonds, which the mortgagors now have, and would not affect the possession at all, but only the right. (Carpenter v. Millard, 38 Vt., 9; Shaw v. Chamberlin, 45 Vt., 512; Brooks v. Vt. Cent. R. R. Co., 14 Blatchf C. C. R., 463.) A mortgagee, in Vermont, may have an action of assumpsit to recover his debt, an action of ejectment to recover possession of the mortgaged premises, and a suit in equity to foreclose the right to redeem, all going on at the same time, each in a different Court from either of the others, and neither will interfere with the other, nor will the pendency of any of them abate either of them. The remedy in each case is distinct from that in the others. the common law. This was so at The objection on account of the receivership cannot prevail to prevent proceeding in this cause, so far as it can go The Mercantile Trust Company v. The Lamoille Valley Railroad Company. without interfering with the receivership; and a decree of foreclosure can be had, if the plaintiff is otherwise entitled to one, without involving such interference. The other principal question is, whether the State Court had the same parties before it, either actually or by representation, for the same relief, so that it had jurisdiction of the cause, before the parties were brought before this Court, so as to give jurisdiction. One branch of this question is, whether the service of the process of the State Court upon the plaintiff here, as a defendant to the cross-bill there, out of the State, would be effectual. A party having property within a State submits it to the laws of the State and to such proceedings as they provide for, and, if they provide for proceedings against it without personal service, or even without any service, he must, probably, submit to them; but he cannot justly be compelled to submit to any process which the laws of the State do not provide for. The laws of the State of Vermont provide for service upon non-residents, in Chancery cases, by publication in a particularly specified manner. (Gen. Stat., 249, sec. 21.) They also provide for constructive service upon non-resident defendants whose property is attached, in actions at law, (Gen. Stat., 296, sec. 48;) and, also, for service in various modes upon non-resident defendants in divorce proceedings. But they nowhere provide for any order by the Courts of Chancery, to serve their process out of the State, nor for serving it out of the State, in the manner in which this was served, or in any other manner. Such service has often been made, sometimes where the Court required it, in order that actual notice might be given, as a matter of fairness, and sometimes as a substituted service. But, whether it is operative at all, as the only service, has been much doubted; and that question was expressly avoided and left undecided by the Supreme Court of the State, in Cheever v. Birchard, (Pamphlet Opinion of Steele, J., 10.) There is no known decision of the State Court holding such service to be good or bad, but there are several that hold similar service in proceedings at law to be wholly void, even in The Mercantile Trust Company v. The Lamoille Valley Railroad Company. suits concerning real property within the State. (Propagation Society v. Ballard, 4 Vt., 119; Skinner v. McDaniel, 4 Vt., 418.) The Court has no jurisdiction or authority to act without the State, and it is not easy to see how it can affect any party by anything done by it, or under its order, without the State; nor how it can affect any right within the State belonging to parties without, otherwise than by proceedings under and according to the laws of the State. As viewed here, that service was not operative upon the plaintiff, nor such as it was bound to take any notice of. But, if that service had been operative, a question whether the proceeding to which it would make the plaintiff a party was a proper one for obtaining the relief sought here, would still remain. It would have made the plaintiff a defendant to a cross-bill for the foreclosure of a mortgage securing its own debt, which might not be a very favorable position in which to obtain the affirmative relief of foreclosure in its own favor. It is urged, however, that, because the mortgage trustees are parties, they draw the plaintiff in and make it a party, by representation, whether it will or not. The trustees hold the legal title to the mortgaged estate, but not the mortgage debt. It is quite familiar doctrine, that a mortgage is incident to the debt, which is always the principal thing. The default which would forfeit the estate would be to the bondholders owning the debt, not to the trustees holding the legal estate. The trustees could not foreclose the mortgage without the support of the bondholders, or some of them, in it. If they should undertake to do so, and no bondholder should come in and prove his bonds, they could have no complete decree. But, bondholders may foreclose and have a full decree, whether the trustees will or not. At the argument, counsel very familiar with these subjects were pressed to show a case where a bondholder had undertaken to foreclose and been denied that relief, but no such case was produced; and it was admitted there were none. The bondholders have control of the bonds and the trustees have not. This is what The Mercantile Trust Company v. The Lamoille Valley Railroad Company. was meant in Brooks v. Vt. Central R. R. Co., in stating that the trustees were not agents for the bondholders, and what was understood to be the effect of the authorities cited there in support of that proposition. It has been many times held, against the objection of the mortgagors that all were not joined in a proceeding to foreclose, that all need not be joined, which seems to be very plain. It is equally plain, that some must join, at some stage, in order to have a perfect decree. Suppose some do join and others do not, and a decree perfected to foreclose the right to redeem the bonds of those who do, and not of the rest. If the property should be redeemed from that decree that would, not pay the other bonds, nor cut off the owners of them from their right to foreclose. If it should not be redeemed, while the right of the mortgagors to it would be extinguished, that of the holders of the bonds not foreclosed would not be, but would still remain as against those who did foreclose, and could be enforced. (Wright v. Parker, 2 Aik., 212; Langdon v. Keith, 9 Vt., 299; Belding v. Manly, 21 Vt., 550; Brooks v. Vt. Central R. R. Co., 14 Blatchf. C. C. R., 463.) This shows, that, when the trustees foreclose, the bondholders who join are the real parties and foreclose in behalf of their own rights, through the trustees, and that the trustees do not represent the rights of any who do not join. In an action of ejectment, depending upon the strict legal title, it would be different. There, the trustees could prevail alone, without the bondholders, but the bondholders could do nothing without the trustees. But, in equity, the real owner is regarded and the nominal owner is not. And, as this case is situated, the trustees may not represent all the rights of the bondholders as well as they would in ordinary cases. Poland, one of the trustees in the first mortgage, is sole trustee in another mortgage, claimed to have preference. The State Court has the trustees of both parties to the proceedings there. With the trustees as parties alone, the only decree there could be would be, either that he should be foreclosed unless he should pay himself and the other so much by such a time, or that both The Mercantile Trust Company v. The Lamoille Valley Railroad Company. should be foreclosed unless they should pay him so much by such a time. In either case he could redeem by paying himself, which would not accomplish anything. It would all be within himself. He cannot represent the plaintiffs and their opponents at the same time. Bondholders of each mortgage are made parties, it is true, and such as may fairly represent the interests common to each class, but, if so, they do not represent in fact all others of the same classes. They can only act for themselves. Whether those proceedings shall abate this suit, depends as well upon its being for the same relief in full, as upon being between the same parties, and the relief available there might fall far short of an effective foreclosure, as is sought here. This is not the fault of the trustees, but of the position in which they have been placed by those who have made them trustees. It is said, in behalf of one demurring party, that the bill does not show any request from the plaintiff to the trustees to foreclose, and that they are not entitled to proceed in their own behalf without such request and a refusal or failure to comply. It is true, that no such request is alleged, so far as has been observed, but it is also true, for the reasons just stated, that none would be of any avail. The trustees are not so situated that they can foreclose alone. It is also objected, that this Court cannot proceed to a decree of foreclosure in behalf of the plaintiff, because such a decree cannot be perfected without ascertaining the sum due in equity, and that this Court cannot settle the accounts of the receivers, to ascertain how much there is in their hands to apply on the mortgage debt, because it has no jurisdiction over them. It is true, that this Court cannot settle their accounts. It is also true, that they were not appointed in a suit to which the plaintiff was a party; if the plaintiff had been a party there, it could not maintain this suit here; they were appointed in a suit between others and the mortgagors. The sum due in equity is to be ascertained by fixing the amount lawfully due after deducting payments. The source from which the mortgagors derive means of pay |