HASELTON

v.

FI,OnENTINE MARBLE CO.

701

HASELTON v. FLORENTINE MARBLE CO. (Circuit Court, D. Vermont. May 12, 1899.)

1.

MORTGAGES-RIGHT TO FORECLOSE-AGREEMENT FOR EXTENSION.

An agreement between mortgagor Rnd mortgagee, after condition broken, that the time for making payment might be deferred, but not for any definite time, will not defeat the right of entry given by the terms of the mortgage, nor bar proceedings for foreclosure.

2. ATTORNEY AND CMENT-POWERS OF ATTOHNEY.

The relation of attorney and client alone will not confer on the attorney authority to bind his client by an agreement to extend the time for payment of a mortgage debt owned by the client.

In Equity.

On motion for appointment of a receiver. Chas. M. Wilds, for plaintiff. Frederick H. Button and Eleazer L. 'Vaterman, for defendant.

WHEELER, District Judge. This bill is brought for foreclosure of a mortgage on, and sale of, marble lands and quarries, "and all and every and each of the engines, boilers, derricks, channeling machines, ropes, pulleys, gang saws, mills, houses, machinery, and a,ppliances, and all the railroad tracks, switches, sidings, leases, and all and singular the real and personal property of the said Florentine Company, in the state of Vermont, which it now owns, or which it may hereafter own, in connection with the operation of its business in said state of Vermont," to secure six notes of the defendant, dated September 1, 1897, by whomsoever held,"'--One of 659.86 and one of $6,340.14, due in one year from date, and four of $10,000 each, due, respectively, in two, three,f()ur, and five years from date, with interest semiannually. The condition of the mortgage is:
"Now, if default be made in the payment of said six promissory notes, or any Part thereot, the interest thereon, or any part thereof, at the time and in the manner above specified for the payment thereof, or in case of waste, or nonpayment of taxes or assessments upon said premises, or a breach of any of the covenants or agreements herein contained, then in such case the whole of said principal sum and interest secured by the said six promissory notes shall thereupon, at the option of the legal holders of any of said notes. become immediately due and payal:;Jle; ,and on the application of the legal holder of said promissory notes, or either of them, it shall be lawful for the said grantee, or his successor in trust, to enter into and upon and take possession of the premises hereby granted, or any part thereof, and to collect and receive all rents, issues, and profits thereof, and operate said quarries and business in his own name, as such trustee, and in his own name or otherwise to file a bill or bills. in any court having jurisdiction thereof, against the party of the first part. its successors or assigns, and obtain a decree for the appointment of a receiver, and for the sale and conveyance of the whole or any part of said premises for the purposes herein specified, by said party of the second part, as such trustee or as special commissioner, or otherwise, under order of court, and out of the proceeds of any such sale to first pay the costs of such suit, all costs of advertising, sale, and conveyance, ineluding the reasonable fees and commissions of said party of the second part, or person who may be appointed to execute this trust, and reasonable attorney's and solicitor's fees, to be fixed by the court, and also aU other expenses of this trust. including all moneys advanced for abstracts of title, for insurance, taxes, and other liens or assessments, with interest thereon at six per cent. pel' annum; then to pay the principal of said first matm'ing notes due one year from the date thereof, and the balance upon the

70Z
four notes, of ten thousand dollars each, due two, three, four, and five years from date, '.:1

The bill and !aD;sweI,' sh9W W,Cll:,t!lY, at whose request this suit is, brought, holds and owns all the notes but that ?f bY;,'Samlfel :.A,-. The has l'Weq, .pald as It ':the up an agreement with Worth,y and to extend the time of the two fimt notes'oneyeal',which,twith authority to make it, as to the one held by Mrs. Worthy, is denied by her. A motion for a I,'eceiver has now been heard onbill,answer, and affidavits.". ' The alleged agreement to extend time. is relied upon to defeat the was s-qch before motion for a receiver. If condition broken,. to extend the time beyond when the bill ",as brought, it 'Illight save the ,l;lreach upon which ihe bilI is fOlwded. But no agio'eement to extetldany definite tinie appears,or is claimed to have been made, before th.e ,first two. notes fell.,l,lue.. rhere was talk about it 'before, and coi'l'eSp<mdence'F\f'ter, 'Which; however, appear to have .never amounted 'td' morefliail a loose understanding that paymentmight then be deferred, tititnot for any 'definite time. This would 'iI'6f devest the right oferitry accrued by the breach of .. 'Authority, to make condition, nor,:bar proceediifgs' bf such an agl'eement 'to 'be, shown, beyond the relation of attorney and cHeIif, which is not only fi<WshOwn, 'but the want of iUs made to appear. ,,' . The option tollave 'the' whole debt become due oti'default of part was attempted 'to be after the next installment of interest was paid, and after tliis.suit .was begUn., :, Question has been made in whether the attempt, was seasonable. ,That' question is not materiaJ,however, on this tnotion;!for the orator had the right to enter upon the mortgaged. premises and propertY,and,take the rents and I)l·ofitsto. apply-on' the debt, and to have a receiver th*,t upon any breach condition, according to thl:l oftherp,ortgage. questiop. m,ayproperly arise when payment of that part of the debt is reached in the course of the proceedings. .... By the ferllls of the m0l'tga,ge,. the had, ,right to the possession and ,control of the and "to qU:trry and sell marble therefrom, and carry on,the business," in the. ordinary way, so longas the conditions of the mortgage shl)uld be performed. Question is also in,adewhether. the m()rtgage C,OVer!! quarried by tht) mortgagor in posses'sion.. ''J,'he, words, ."all and ,singular the real and personal property of the said Florentine Marble Oompany, in the state of Vermont, which it noW owns,or which'it may hereoWJ,l.,iJi connectionwitp:the operation of.its,b]l'slnel;lS," would l3e<:m broad' enough to coy.e(fu\s marble, if tripOn it. The other property could be mortgaged,mostly or wholly"as, real estate could. V. S. ·§2269.This .wouldbe personal property, but a mortbe vali'd against the mortgage of it as if .real gagor; and, with possesSion, agaiJ:j.st all: Section 2252. 'The temporary receiver appointed on consent is understood to be now in

or