appeared and adopted as its answer the answer of Begole, Bourke, Wood and the railway company, and entered into a stipulation that the case as to it might be disposed of on the proofs already introduced.

"The present indebtedness of the railway company to general creditors aggregates $8,600. Going to make up this total is a judgment for $1,750 arising out of the personal injury of an employee. Intervention on the part and behalf of the general creditors was applied for and granted, but excepting the owner of the judgment, no creditor has filed an answer or made any representation to the court respecting the amount or nature of his claim. The judgment creditor asks that his judgment be given priority over the plaintiff's mortgage as well as over all obligations of the railway.

"Assuming the judgment creditor would be entitled to priority over any mortgage placed on the property by the railway subsequent to the entry of his judgment he would not be entitled to priority over a mortgage which was on the property when the judgment was entered, much less over a mortgage on the property when the railway acquired it. But the plaintiff, as well as all other parties to the action having as they have advised the court, stipulated that the judgment be given priority over the mortgage, it will be done.

"The questions presented are:

"1. Whether the court has original or only appellate jurisdiction to entertain the application of the defendant railway to abandon the road.

"2. Whether the situation of the road and its future prospects justify abandonment, and,

"3. Assuming the road, if sold as a going concern, will not bring sufficient to pay the mortgage, whether the plaintiff is entitled to a decree permitting a sale of the track material separate from the other property with right in the purchaser to take up the tracks and thereby destroy the road.”

This suit was begun on June 29, 1917, by plaintiff filing in the chancery court of Delta county a bill to foreclose the purchase price mortgage given by the

four partners to the lumber company in 1915 covering all the property they then purchased. These purchasing partners, Ewald, Begole, Bourke, Wood, their respective wives, and the Garden Bay Railway Co. were made defendants. The bill followed in general form an ordinary real estate mortgage foreclosure bill, reciting also and asking relief under a provision in the mortgage which authorizes the mortgagee in case of 30 days' default to enter the premises, take possession thereof and sell all the steel rails, ties, fish-plates, switches, etc., covered by the mortgage as personal property, on six days' notice duly posted in three or more designated public places. No attempt was made by plaintiff to pursue this summary method of chattel mortgage foreclosure, but apparently recognizing that the security was in its legal aspect primarily a real estate mortgage, because covering a railroad, plaintiff applied to the chancery court for a decree of foreclosure under the regular chancery practice in real estate mortgage foreclosures, thus conferring jurisdiction in that particular. But the appellants Begole, Bourke, Wood and the Garden Bay Railway Company by their answer especially ask the court to authorize abandonment of the railroad, and a decree that it may be dismantled and its steel sold as personal property.

We do not discover that counsel now question the decision of the trial court that it had in this proceeding jurisdiction to entertain the application of the defendant railway to abandon operating and dismantle its line under the peculiar circumstances of the case where, in the language of the trial court,

"the question of abandonment is interlaced with other important questions which only a court of equity is authorized to entertain and which must or should be disposed of in order to settle the rights and equities of all persons concerned."

At the time the mortgage was given the Garden Bay

railroad was a private, unincorporated logging road held to no legal obligations as a common carrier and the mortgagee, or its assignee, was in case of default entitled by the terms of the mortgage to enforce collection on the indebtedness, even by dismantling the road if necessary to that end. The subsequent incorporation of the road by the partner mortgagors and its assumption of the obligation of a common carrier could not affect vested rights under the prior mortgage. Recognizing plaintiff was entitled to full protection of his rights and relief by decree of foreclosure sale under his bill, the trial court also found under the evidence that the public interest and needs required operation of the railroad to be continued; that under the facts shown the lands, dock and various buildings thereon, with water privilege, etc., which the partners had deeded to the Garden Produce Co. on the same day the rest of the property was deeded to the Garden Bay Railway Co. rightfully belonged and should have been deeded to the latter, which, if put in proper condition and properly managed could, and in the public interest should, be operated without loss.

On July 12, 1918, a lengthy decree was filed which, in brief and sufficient to indicate the subjects presented for review, orders that the produce company deed to the railway company the mortgaged realty standing in its name found held equitably belonging to the latter; that a receiver be appointed to take possession of the property described in the mortgage with power to borrow on receiver's certificate sufficient money to lease or purchase adequate equipment to operate the railroad as a common carrier and to pay the cost of operation for a specified time, said certificates to be a lien on the mortgaged property second only to plaintiff's claim under his mortgage, and that

"all the property described in paragraph one (1) hereof and also all additions thereto of whatsoever name, nature or description, made by the receiver, shall be sold by or under the direction of said receiver at any time after the said thirtieth day of July, 1918, and not later than the thirtieth day of April, 1919, upon the notice usual in sales on foreclosure in chancery, at the front door of the court house in the city of Escanaba, in said county of Delta. At such sale all said railroad property shall be first offered as an entirety on condition and with the obligation on the purchaser to operate said property as a common carrier of passengers and freight, and shall be sold to the highest bidder, provided there shall be bid therefor with said operation obligation and condition attached, a sum sufficient to pay said Foster judgment and the amount now due on said mortgage with the interest and costs of suit. If, after waiting one hour, no bid for said property as an entirety with said operating condition and obligation attached, equal to said Foster judgment and the amount now due on said mortgage, with interest and costs of suit, shall be received, then the said receiver shall immediately offer said property separately as follows:

"1st. All rails, fish-plates, switches, bolts, spikes, railroad ties, tools, handcars, and all other removable improvements, materials, and equipment used for railroad purposes and in connection with the operation of the railroad of the Garden Bay Railway Company, owned by it or acquired by the receiver, as one parcel, with the right in the purchaser or purchasers, to take up and remove from the roadbed of the said railroad and dispose of as he or they see fit.

"2d. The entire right of way of the Garden Bay Railway Company, including all fencing, as one parcel. "3d. All other real estate of said Garden Bay Railway Company and described in paragraph one (1) hereof, in separate parcels, all contiguous property being considered as one parcel.

"4th. All other personal property of said defendant railway company.'"

Out of the proceeds of such sale the expenses of making the same are to be first paid and then, consecu

205-Mich.-2.

tively, the Foster personal injury judgment, mortgage indebtedness and costs of foreclosure suit, the receiver's certificates, pro rata the unsecured claims of creditors, and the balance, if any, to the treasurer of the Garden Bay Railway Co.

Of the status of parties to this suit, the appellant defendants are the Garden Bay Railway Co., the Garden Produce Co., Bourke, Begole, Wood, and their wives, with the Pittsburg Coal Co. and Minneapolis, St. Paul & Sault Ste. Marie Railway Co., creditors and intervening defendants. Defendants Begole and Ewald, who were formerly active partners and stockholders in the enterprise, had dropped out and their subsequent interest was largely reminiscent. Begole, who testified he had sold his stock because he "wanted to quit," named plaintiff Gasser and a Mr. Stephenson as the heaviest stockholders in the road and said, "Mr. Gasser has everything I had. He also acquired part of Mr. Ewald's stock." Ewald testified that he had sold his stock to Gasser and Stephenson, saying, "I realized from the sale of my stock, a quarter interest in the corporation, $710. After that transaction I severed my connection with Garden Bay Railway Company." He also admitted on cross-examination to an unfriendly feeling and replied to an inquiry in that connection, "I know of an attempt being made after I left the road to divert business from the road. I attempted myself." He was a strong and willing witness for the intervening defendants who opposed abandonment, as was Begole for the defendants who also "wanted to quit" and advocated dismantling the road. The plaintiff, Gasser, has not appealed and was not a witness in the case. Bourke, president of the road, testified that in November, 1916, he interviewed Mr. Lowe, then owner of the mortgage, who offered to discount it $2,000; that he so advised Mr. Gasser and "everybody interested at that time