Northern Central Railway Co. v. State

'Noldsborough, 3., delivered the opinion of this court: The action in the above case is brought to recover the ^arrears of an annuity of $90,000, which the company stipulated to pay to the State, by its -mortgage, executed o-m the ^27th of January 1855. The covenant declared on is in these words: “And the Northern Central Railway Company aforesaid, doth' hereby •covenant., promise and agree, to and with the State of Maryland aforesaid, by these presents, that it, the said company, shall and will well and truly pay or cause to be paid unto the State of Maryland, an annuity of ninety thousand dollars a .year, payable into the treasury of the said State, in quarterly payments, commencing from the date of the execution of this indenture or mortgage, in the mauner provided and required by the provisions of the said Act of January -session 1854, ch. ■260.” The defendant pleaded “that by the true construction •of the said mortgage, the State of Maryland is precluded from instituting suit for any default, except when the whole amount 'of the annuity due in any one year has been due and unpaid by the space of throe months, and that such amount was not •so due at the time of the institution of this suit.” To this plea the plaintiff demurred. The defendant joined in demurrer, and the plaintiff obtained judgment thereon. ■Upon this judgment the defendant appealed to-this court. We approve -of the judgment of the court below.

The :State of Maryland being a large creditor of the Baltimore •■and Susquehanna Railroad Company, and having its rights ■secured by liens, consented to abandon those liens at the instance of the appellants, upon the condition that, the appellants would execute the mortgage mentioned in the record. This arrangement was doubtless resorted to by both parties, an view of mutual benefits arising to them respectively: — to -the appellants, by the consolidation sought to be effected, and tto the appellee, by the punctual payment of the annuity •agreed upon, according to the terms of the mortgage. The mortgage contains a stipulation “that until default is made in the payment of the said annuity of ninety thousand •■dollars a year, or some part thereof, and until three months ¹² subsequent to a default of the company to pay the whole amount of said annuity which may fall due in any one year, it shall and may be lawful to and for the Northern Central Railway Company aforesaid, to hold and enjoy the said railroad and other the premises hereby granted and sold, or intended and meant so to be, and the income, profits and produce thereof, t,o receive and take to its own use, without any lawful let, suit, interruption, disturbance, claim or demand whatsoever, of, from or by the Stale of Maryland aforesaid, or any other person or persons lawfully claiming or to claim by, from or under the State.” We have set out at large this provision of the mortgage, because upon it. has been based the whole argument of the appellant, who insists that by its terms “the State was prevenid from instituting any suit upon the covenant to pay in the mortgage, until a whole year's annuity had been in arrear three months." By adverting to the covenant upon which the suit is brought, it will be seen that the obligation