2. The next contention is based upon the first report of the auditor, in which he stated that he found that additions were made to the stock of goods after the date of the mortgage, and that he was left in doubt whether such added stock was sold at the foreclosure sale. When the case was recommitted to the auditor, he found on this point as follows: "Between the date of the mortgage | and July 12th the mortgagor added about $50 worth of goods to his stock. I do not find that any such after-acquired property was sold at the auction." The mortgage in question contained this clause: "This mortgage shall apply to all future acquired stock that I shall have in my business." The defendant contends that the burden of proof was upon the plaintiff to show that no afteracquired goods were sold at the auction, and that the auditor's report does not show this. There is no occasion to consider these questions. The law in Massachusetts is now well settled. While property acquired after a mortgage is delivered does not pass to the mortgagee as against attaching creditors and subsequent vendees and mortgagees, yet a provision in a mortgage that it shall cover after acquired goods operates as an executory agreement that such goods shall be holden by the mortgagee as security, when acquired by the mortgagor, and the mortgagee may take possession before the rights of third persons intervene. The mere fact that a person is a creditor is not enough. He must have a claim upon the goods before the mortgagee takes possession, either by attachment or by a seizure upon an execution. Rowley v. Rice, 11 Metc. 333; Blanchard v. Cooke, 144 Mass. 207, 223, 11 N. E. 83; Bennett v. Bailey, 150 Mass. 257, 260, 22 N. E. 916; Bliss v. Crosier, 159 Mass. 498, 34 N. E. 1075. In the case at bar the only justification which the defendant sets up is the seizure of the goods on execution nearly a month after the sale.

3. The next contention of the defendant is that the foreclosure is invalid because no proper notice was given. By the terms of the mortgage five days' notice in writing of the time and place of sale were required. The auditor has found that either four or five

days' notice was given. If a mortgagor sought to set aside a sale on the ground of insufficient notice, he would prevail; but we see no ground for holding in a case like the present, where the mortgagor assents and treats the notice as good, that the sale is not valid. Besides, the plaintiff was a purchaser for value, and was not affected by an irregularity in the execution of the power of sale. Stevenson v. Hano, 148 Mass. 616, 20 N. E. 200; Silva v. Turner, 166 Mass. 407, 413, 44 N. E. 532. The case of Rogers v. Barnes, 169 Mass. 179, 47 N. E. 602, 38 L. R. A. 145, decided merely that a mortgagor could maintain an action of tort against a mortgagee for the wrongful execution of a power of sale, when there had been no breach of any condition of the mortgage, although the land had been sold to a bona fide purchaser for value.

4. The last contention of the defendant is that the foreclosure is void because the notice of the foreclosure, with an affidavit of the service thereof was not recorded. It appears in the original report of the auditor that there was no evidence concerning the record of the notice. In the supplemental report nothing is said on the subject. We doubt whether any such question is open to the defendant; but, if it is open, and the notice was not recorded, it does not follow that the foreclosure was void.

The statute upon which the defendant relies is Rev. Laws, c. 198, § 6; but this section, together with sections 4, 5, and 7, relates to the redemption of mortgages, and points out one method of foreclosure. They have nothing to do with a foreclosure under a power of sale, except that section 6 provides: "The mortgagor or a person lawfully claiming under him, may after breach of condition redeem the mortgaged property before it is sold in pursuance of the contract between the parties, or before the right of redemption is foreclosed." The remaining sections point out how a mortgagee may foreclose. They have no relation to a foreclosure under a power of sale contained in a mortgage.

Judgment for the plaintiff affirmed.

among other things, the following: "That the plaintiff, Indianapolis & Western Railway Company, is a street railway corporation, organized pursuant to the laws of the state of Indiana regulating and authorizing the construction, maintenance, and operation of street railroads, interurban street railroads, and suburban street railroads, and that it was incorporated as a street railroad company for the purpose of constructing, maintaining, and operating an interurban street railroad from the city of Indianapolis, in said county and state, to. the town of Danville in the county of Hendricks; thence to the city of Greencastle in the county of Putnam; thence to the city of Brazil in the county of Clay; and to operate its cars thence to the city of Terre Haute in the county of Vigo, in said state." It further alleged that the defendants (appellants herein) are the owners and claimants and holders of liens on the right of way sought to be appropriated. The complaint described the right of way by its termini and alleged that the width thereof varies from 12 to 50 feet according to the depth of the cut and the height of the fill and the general topography of the country. A particular description of each of the parcels of land sought to be appropriated is set forth in the complaint, and it is alleged therein that the plaintiff had been unable to agree with the owners for the purchase of the lands in question, and prayed for their condemnation and appropriation thereof for the use and purposes thereinbefore named and the right of the plaintiff to exercise the power of eminent domain for the use and purposes therein sought. The complaint further prayed for the appointment of appraisers, for the issue of summons, and for, all other relief. The grounds of the written objections interposed by appellants to the proceedings under the amended complaint are the following: (1) That the plaintiff has no right to exercise the power of eminent domain to the extent to which it proposes to appropriate the property of the defendants. (2) That the plaintiff in and by its amended complaint does not state facts which show that it is entitled to exercise the right of eminent domain to the extent proposed and attempted in and by these proceedings. (3) That under the statute under which the plaintiff is incorporated, which constitutes its charter, it is authorized to exercise the right of eminent domain and appropriate so much land only "as may be necessary for the construction, maintenance, and operation of its railroads, railroad stations, depots, power houses, shops, car barns, offices, lines for transmission of electricity for heat, light, and power"; that the land proposed to be taken in this proceeding is not taken for the site of a station, terminal, power house, substation, roundhouse, yard, car barn, office building, or any other purpose except for a right of way; that the amended complaint does not state

whether the plaintiff's railroad is other than a single track road, but the defendants are informed and believe and so charge that the plaintiff's railroad is a single track railroad and that the right of way necessary for the same is nine feet wide and no more; that the plaintiff in its amended complaint states "that the width of said right of way varies from 12 feet to 50 feet, according to the depth of the cut and height of the fills and the general topography of the country"; that there are neither cuts nor fills upon the property of the defendants which render it necessary to appropriate 50 feet in width of the lands of the defendants. (4) That the amended complaint herein does not set forth its specific description of the entire tract of land of these defendants and state whether the same includes the whole or only a part of the entire parcel or tract. (5) That there is no such corporation as that named as plaintiff herein, and said plaintiff has no right to exercise the right of eminent domain. (6) That the act under which said proceedings are had, to wit, chapter 48, p. 59, of the Acts of 1905, being an act of the General Assembly of the state of Indiana, entitled "An act concerning proceedings in the exercise of eminent domain," approved February 27, 1905, is in violation of section 1 of the fourteenth amendment to the Constitution of the United States.

The record shows that appellants demanded that the court accord them a hearing on the issue of facts formed by the averments of the amended complaint and the written objections thereto and demanded the right to introduce testimony upon such issues. This demand the court, over appellants' exceptions and objections, denied, for the reason, as stated by the court, that under the procedure of the statute upon which the action was based it had no power to hear any testimony on any issue of fact raised by appellants' written objections, and thereupon, without any hearing, it overruled said written objections, to which ruling appellants duly excepted. The court then announced that it would immediately proceed. to make an interlocutory order appointing appraisers in said cause. It appears that appellee's counsel thereupon tendered to the court, for entry in said cause, an interlocutory order and decree which they had previously prepared. To the entering of this or any other interlocutory order in the cause appellants by counsel objected for the following reasons: (1) That the plaintiff had not introduced or submitted any evidence in the cause to sustain any of the allegations of the complaint herein. (2) That there is and has been no evidence submitted to the court to sustain any of the facts and allegations alleged in the complaint, nor any evidence to sustain the facts found in the decree and interlocutory order. (3) That no evidence has been submitted to the court, and the court has no knowledge and information upon

which and from which the facts found in the decree could be based. (4) That said decree is submitted by the plaintiff and is entered by the court without the introduction or submission of any evidence in the cause by any of the parties thereto. These objections the court overruled and then announced that it would enter said interlocutory order and decree as requested by appellee, which it accordingly did, and the same is the order or decree from which this appeal is prosecuted. After the entry of this decree appellants filed a motion to strike it out, assigning in said motion as reason therefor that no evidence had been submitted to the court and that, therefore, the court had no jurisdiction to make or enter the interlocutory order in controversy. This motion was overruled, to which appellants excepted. Appeal prayed for and taken as provided by the statute.

The errors assigned for reversal of the interlocutory order in question are: (1) That the court below had no jurisdiction of the subject-matter. (2) That the court below erred in overruling the objections of the appellants to the proceedings after the filing of the amended complaint. (3) That the court erred in overruling the oral objections of the appellants to the entering of the decree and interlocutory order in this cause. (4) That the court erred in overruling the motion of the appellants to strike out and reject the decree and interlocutory order entered in said cause. (5) That said proceedings are void and should be set aside and dismissed for the reason that the act under which said proceedings are had, to wit, chapter 48, p. 59, of the Acts of 1905, being an act of the General Assembly of the state of Indiana entitled "An act concerning proceedings in the exercise of eminent domain," approved February 27, 1905, is invalid because it is in conflict with section 1 of the fourteenth amendment to the Constitution of the United States.

The contentions of appellants' counsel in the main are that the court denied them, at the preliminary hearing provided for by the statute, the right to be heard on the essential facts relative to appellee's right to condemn and appropriate their lands, as it sought to do under its complaint. The insistence is that, if the construction or interpretation placed upon the statute in question by the court is correct, then the law is in conflict with both the federal and state Constitution. In fact, the questions discussed by the respective parties to this appeal are principally based upon or relative to the proper construction of the statute. It therefore becomes necessary that we refer to the several provisions of the act in question so far as they are material to the proper determination of this appeal.

Section 1, among other things, provides that "any person, corporation or other body having the right to exercise the power of eminent domain for any public use, under

any statute existing or hereafter passed, and desiring to exercise such power, shall do so only in the manner provided in this act, except as otherwise provided herein. Before proceeding to condemn, such person, corporation or other body, may enter upon any land for the purpose of examining and surveying the property sought to be appropriated, or rights sought to be acquired; and shall make an effort to purchase for the use intended such lands, right of way, easement or other interest therein, or other property or right," etc.

Section 2 (page 60) provides that "if such person, corporation or other body shall not agree with the owner of the land, or other property or right, or with such guardian, touching the damages sustained by such owner, as provided in the last section, the person, corporation or other body so seeking to condemn may file a complaint for that purpose in the office of the clerk of the circuit or superior court of the county where such land or other property or right is situated. Such complaint shall state: [Here follows what the complaint is required to state.]"

Section 3 (page 61) provides that upon the filing of the complaint the clerk shall issue a notice, which shall contain the names of the parties, a general description of the whole property, etc., and require the defendant to appear on a day to be fixed by the plaintiff by indorsement on the complaint and show cause why the property described should not be condemned as prayed for in the complaint. (Our italics.)

*

Section 4 (page 61) provides that "upon the return of such notice, showing service thereof for ten days, or proof of publication for three successive weeks in a weekly news. paper of general circulation, the last publication to be five days before the day set for the hearing, * * the court, or judge in vacation, being satisfied of the regularity of the proceedings and the right of the plaintiff to exercise the power of eminent domain for the use sought, shall appoint three disinterested freeholders of the county to assess the damages, or benefits and damages, as the case may be, which the owner or owners severally may sustain or be entitled to by reason of said appropriation."

Section 5 (page 61) reads as follows: "Any defendant may object to such proceeding on the ground that the court has no jurisdiction either of the subject-matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections. Such objections shall be in writing, separately stated and numbered, and shall be filed not later than the first appearance of such defendant; and no pleadings other than the complaint and such statement of objections shall be allowed in such cause, except the answer provided for in section 8 of this act: Provided, that amendments to pleadings may

ne made upon leave of court. If any such objection shall be sustained, the plaintiff may amend his complaint or may appeal to the Supreme or Appellate Court from such decision, as and in the manner that appeals are taken from final judgments in civil actions, of which appeal all the parties shall take notice and by which they shall be bound. But if such objections are overruled the court, or judge, shall appoint appraisers as provided for in this act; and from such interlocutory order overruling such objections and appointing appraisers such defendants, or any of them, may appeal to the Supreme or Appellate Court from such decisions as and in the manner that appeals are taken from final judgments in civil actions, upon filing with the clerk of such court a bond with such penalty as the court, or judge, shall fix, with sufficient surety, payable to the plaintiff, conditioned for the diligent prosecution of such appeal and for the payment of the judgment and costs which may be affirmed and adjudged against appellants. Such appeal bond shall be filed within ten days after the appointment of such appraisers. All the parties shall take notice of and be bound by such appeal. The transcript shall be filed in the office of the clerk of the Supreme Court within thirty days after the filing of the appeal bond. Such appeal shall not stay proceedings in such cause."

Section 6 (page 62) prescribes the oath to be taken by the appraisers and the manner in which they shall determine and report upon the assessment of damages.

Section 7 (page 63) provides that, if the plaintiff shall pay to the clerk of such court the amount of damages thus assessed, "it shall be lawful for such plaintiff to take possession of and hold the interest in the lands so appropriated for the uses sought in such complaint, subject to the appeal provided for in section 5 of this act, but the amount of such benefits or damages shall be subject to review, as provided in the next section."

Section 8 (page 63) is as follows: “Any party to such action aggrieved by the assessment of benefits or damages, may file written exceptions thereto in the office of the clerk of such court in vacation, or in open court if in session, within ten days after the filing of such report, and the cause shall further proceed to issue, trial and judgment as in civil actions; the court may make such further orders, and render such findings and judgments as may seem just. Such judgment as to benefits or damages shall be appealable by either party as in civil actions to the Appellate or Supreme Court."

At this point we are confronted with the Insistence of appellee's counsel that the clause of section 5 which provides that the written objections shall be filed not later than the first appearance of such defendant is mandatory and wholly deprives or prohibits the filing of such objections at a subsequent day. Therefore it is contended that, as ap

pellants did not file their objections on the day they were notified to appear, their subsequent filing was unwarranted, and they are in the same position as if they had filed no objection whatever, and consequently cannot be heard upon the question that they seek to present in this appeal. It is not clear as to whether the clause, "first appearance of such defendant," contemplates or intends the day upon which he, under the notice given, is required to appear, or the day on which he actually does appear. Conceding, however, without deciding, that thereby the Legislature meant or intended the day on which he is required first to appear in response to the notice, we pass to a consideration of the proposition advanced by appellee's counsel. As hereinbefore stated, appellants were summoned to appear on June 10, 1905, and show cause why their property should not be appropriated by the plaintiff; but as to whether they appeared on that day the record is silent, and, so far as shown, their first appearance was on June 19, 1905, on which day they appeared before the court and were permitted to file their, written objections to the proceedings without any objections being interposed to such filing on the part of the appellee.

Passing to the question, then, as raised by appellee's counsel: Does the clause of the statute in controversy require not only the filing of the objections upon the first appearance of defendant, but does it prohibit their filing at a subsequent day, and thereby deprive the court of the exercise of any discretion in extending the time of their filing? It is manifest, we think, that the purpose or object of the Legislature in exacting that the written objections of the defendant in the proceedings should be filed not later than his first appearance was for the benefit of the plaintiff in such action, as it thereby enables him to secure an early preliminary hearing therein. That it should be construed as merely directory and that it does not strip the court of its discretionary power on a proper and sufficient showing on the part of the defendant, or upon the consent of the plaintiff, to grant or permit an extension of the time beyond the day of the defendant's first appearance for filing his objections to the proceedings, is well settled by the authorities. Martin v. Pifer, 96 Ind. 245, and cases there cited; Smith v. Uhler, 99 Ind. 140; Wampler v. State ex rel., 148 Ind. 557, 47 N. E. 1068, 38 L. R. A. 829; Custer et al. v. Holler et al., 160 Ind. 505, 67 N. E. 228, and authorities there cited. Of course, the exercise by the court of its legal discretion in granting an extension of time for filing such objections will be open to review on appeal. It follows, from the interpretation which we accord to the clause in question, that appellee must be considered as having waived all question in regard to the time at which appellants filed their written objec tion by reason of its failure in any marner to