Dunham v. Isett. machinery, including all the property of the Company, real and personal, and all the rights, credits and franchises of said Company." It is also shown, that these trust deeds were duly recorded in September, 1855, December, 1856, and January, 1857; that the gross earnings of the road have not been sufficient to pay the ordinary operating expenses, keep the road in repair and pay the interest on the outstanding bonds; that there is due and unpaid interest on said bonds to the amount of over four hundred thousand dollars, and for operating expenses, about twentysix thousand dollars. The bill also shows that in October, 1861, the respondent Isett, obtained a judgment against the Company for near $3,000, that he caused execution to issue thereon, and certain persons in the employ of the Company, and others indebted for freight to be garnished. Complainant insists that as such trustee he has the first and paramount lien on all the property of the Company, including tolls, incomes and earnings; that the same is not subject to execution or garnishment, until said bonds, including principal and interest are paid, and prays for an injunction. After argument the injunction was granted. Respondent (Isett) answered and filed his motion to dissolve. This was overruled, to which he excepted, and from that order now appeals. D. C. Cloud for the appellant. I. The demurrer to the petition should have been sustained, and this court should sustain it and dismiss plaintiff's bill: 1st. Because there is no averment in the petition that said deeds of trust were made in pursuance of any statute of the State of Iowa, or any authority derived from any action of the proper authorities; nor is any record autho Dunham v. Isett. rizing such deeds or the issue of said bonds by the directors of said Railroad Company, set out in said petition, nor is the same referred to. 2d. Said petition shows upon its face that plaintiff has a full, adequate and complete remedy at law. An action at law can be maintained against said defendant, Isett, and Sheriff Gordon; if they are trespassers they must respond in damages. There is no averment that any of said defendants are insolvent, or unable to respond in damages, nor is there any averment that this suit is brought to prevent a multiplicity of actions. 3d. Because the petition does not allege that said defendants have in any manner disturbed plaintiff in the enjoy ment of his property; nor does it aver that defendants have disturbed said Railroad Company in their pursuits or possessions, further than to garnish their credits in the hands of third persons, and this I claim defendants had a perfect right to do, there being no stipulation in said deeds. of trust, or in the statute giving said plaintiff, as trustee, any right to claim said moneys, or any of the property conveyed until default made; and until such claim is made said trustee cannot be a party to any suit against defendants, for reason that said deeds of trust leave the whole matter in the hands of the Railroad Company until default "and demand of the interest, and a lapse of sixty days, and then upon request of the holder of one of said bonds," &c., he shall take possession. None of these matters being averred in said petition, plaintiff is not in the position to ask the relief he is now seeking. II. The deeds of trust under which plaintiff seeks to claim said moneys and to assert his claim, are made without authority and are absolutely void. Pierce v. Emery, 32 N. H., 507, and the cases cited on page 508; Shelford on Railways, 155 (marg.); Pennie v. The Delaware and Chesa Dunham v. Isett. peake Canal Company, 9 How., 172; Lippetts v. Walker et al., 4 Mass., 596. III. Our third point is, if the Company had no authority to mortgage their franchise, they could not make a conveyance of the tolls or earnings of their road. Pierce v. Emery, supra; Phillips, &c., v. Winslow, Trustee, 18 B. Monr., 431; 3 Green Ch., 377; In re Ship Wall, 8 Price, 269; are cases under statutes conferring the power; Wellesly v. Wellesly, 4 Myl. & C., 560; and Metcalf v. The Archbishop of York, 6 Lev., 224, are old cases, and have not been followed in this country; and Pennock et al. v. Coe, 23 How., 117; Jones v. Richardson, 10 Met., 481; Howe v. Freeman, 14 Gray, 566; do not hold that the right exists independently of the statute. IV. If the grant must be made before a valid mortgage could be made, then, unless the giving of mortgages was confirmed by the Legislature, by some act in direct terms, no validity is given to them by the act passed before the execution of the mortgage made to Jessup in the Dubuque case. Sedgwick Stat. and Const. Law, 188. V. Our next point is, that admitting the Railroad Company could mortgage for the purposes and upon the terms claimed in said petition, and that such mortgage would be good upon subsequently acquired property, yet the case as made by the petition, does not call for the aid of a Court of Equity. Cook & Drury for the appellee argued: 1. In reply to appellant's first point, that the Court will take judicial notice of the law authorizing the act to be done, and it is not necessary to set it out in the petition: 2. In reply to the second proposition, that the power to execute deeds of trust is conferred by the statute, § 1151, Rev. of 1860, which is but a reprint of § 674, Code of 1851; Jordan v. Posten, 1 Watts., 385; Porter v. Green, 4 Iowa, 571; Hall et al., Dunham v. Isett. Trustees, v. Sullivan Railway, Redfield on Railways, 578, note; Leary v. Stubbs, 12 Ga., 437; 3 Dutch., 185: 3. That independent of any statutory provisions, a corporation created for Railroad purposes may issue bonds and mortgages, and they will be valid and binding; McCollough v. The State of Maryland, 4 Wheat., 316; Ang. & Ames Corp., 253 and 256; The Attorney-General v. Life and Fire Insurance Company, 9 Paige Ch., 470; Moss v. Oakley, 2 Hill, 265; Kelly v. The Mayor of Brooklyn, 4 Id., 263; Union Bank v. Jacobs, 6 Humphrey, 515; Allen v. The Montgomery Railroad Company, 11 Ala., 437; 15 Id., 491: 4. In reply to the third point, that the Railroad Company had the power to mortgage both the franchise and the toll and earnings of their road; Jessup et al. v. Budge, Trustee, 11 Iowa, 573; Pennock et al. v. Coe, 23 How., 117; Galena & Chicago Union Railroad Company, Garnishee, v. Menzies, 26 Id., 121. WRIGHT, J.-The motion to dissolve the injunction was based upon two general grounds: 1. That there is no equity in the bill: 2. That the Company had no authority to make the trust deeds. Under these general propositions appellant's counsel has presented several questions for our consideration, which will be briefly noticed: 1. It is claimed that it does not appear that the bonds attempted to be secured by the deeds of trust, have been sold or hypothecated. The bill avers that the Company was desirous to obtain large sums of money for the purpose of constructing, &c., a certain Railroad then in the course of construction from, &c., that for this purpose the said Company issued their certain bonds, each for the sum of one thousand dollars, amounting in the aggregate to three millions and nine hundred and ninety thousand dollars, drawing interest at the rates of seven and eight per cent, payable semi-annually; that to secure the payment VOL. XV.-37 Dunham v. Isett. of these bonds and make them current in market, the company by its legally constituted officers and in pursuance of law, executed and delivered to complainant, as trustee, their certain mortgages, "by which they granted, transferred and conveyed," &c. It is then particularly averred that on the 1st day of July, 1855, there was issued bonds, known as construction bonds, to the amount of $1,990,000; and that there has been issued and sold $2,000,000 of land grant bonds, and that there is now due and unpaid on interest coupons on said bonds about the sum of $418,309; that none of the principal and but a portion of the interest has been paid. What more could be legally required of the pleader than has been averred in this instance, it is difficult to imagine. It is stated that these bonds were "issued;" that they were "issued and sold;" in other words, that they were sent out and delivered for circulation; that there is now due and unpaid on the interest coupons over $400,000. How these averments could be true, and the bonds still remain in the hands of the treasurer or other officer of the Company for negotiation or hypothe cation, we cannot conceive. The word "issued" is that employed in all the cases, when speaking of similar bonds after their negotiation, after they have passed to third parties, and its meaning is well understood. To use other or different language is not required of the pleader. In this connection we remark, also, that there is no such nega tion of the existence or negotiation of these bonds in the respondent's answer, as to authorize the Court, without further showing, to dissolve the injunction. 2. It is also claimed that complainant has a full and adequate remedy at law; that an action at law could be maintained against Isett and the Sheriff; that their insolvency is not averred and it is not shown that the action is brought to avoid a multiplicity of suits. Assuming for the present the validity of the mortgages, we deem it very |