SAVANNAH & N. W. RY. v. UNION TRUST CO. et al., 236 F. 1021

PER CURIAM. This is an appeal from a final decree against the Savannah & Northwestern Railway, intervener in a suit for foreclosure of mortgage on real and personal property, wherein the Union Trust Company was complainant and the Great Eastern Lumber Company was respondent. The decree appealed from is in favor of the Union Trust Company, foreclosing a certain contract of purchase by the Savannah & Northwestern Railway from the Great Eastern Lumber Company of part of the property covered by the mortgage sought to be foreclosed in the main suit.

The record shows that the Union Trust Company was fully entitled to a decree of foreclosure against the Savannah & Northwestern Railway.

The decree rendered in the case, however, Is apparently more in the nature of a forfeiture than the foreclosure to which the Union Company was entitled, and is erroneous in that respect, and should be modified, so as to make the decree rendered read as follows: It is therefore ordered, considered, and adjudged that all the right, title, and interest of the Savannah & Northwestern Railway in the properties of the defendant under the contract of purchase referred to in said intervention, and particularly all of its right, title, and interest of, in, and to the properties, rights, and oppositions hereinbefore described in this decree, and particularly on pages 102, 103, and 104 in paragraph (b), parcel (2), are terminated and foreclosed.

It is further ordered, adjudged, and decreed that unless the Savannah & Northwestern Railway, within 10 days from the date of this decree, pay the amount herein adjudged due and payable by the Savannah & Northwestern Railway, to wit, the sum of $24,238.02, with interest thereon at the rate of 7 per cent, per annum from January 1, 1915, into the registry of the court, an order of sale issue to the special master herein appointed, directing him, after due advertisement, to sell the said property, rights, and oppositions herein described, free from all and any right, equity, interest, or claim whatsoever of the Savannah & Northwestern Railway in and to the same.

The proceeds of said sale to be applied to the payment of the said amount of $24,238.02, with interest thereon at the rate of 7 per cent, per annum from January 1, 1915, and all costs justly taxable against the Savannah & Northwestern Railway, and any balance to be paid to the said railway. For any deficiency judgment may be entered in favor of the receivers in this cause against the Savannah & Northwestern Railway for the same, and execution issue therefor. This modification is ordered, and, so modified, the decree appealed from is affirmed, with costs of appeal to be paid by the appellees.