I am unable to agree with my fellow justices in the conclusion they have reached that the terms of the trust deed empowered the Trustee to purchase the mortgaged property at a foreclosure sale, use the bonds in the hands of the purchasers thereof with which to pay the price bid at the sale, take the title to the property in his name as Trustee, demand of the bondholders an amount of money sufficient to pay the costs and expenses incurred *Page 628 in the foreclosure proceedings, apportioning the assessment pro rata among them according to their holdings.
The conviction was borne upon me, by the careful examination and analysis of the terms of the trust deed when I prepared the opinion upon the third appearance of the case in this Court, that the Trustee had no power of agency under the terms of the deed to purchase the property for the bondholders whose bonds he did not possess and over the protests of those owners of bonds who refused to appoint him agent for that purpose; that no authority existed under the terms of the deed to subject the property to the burden of another lien to obtain money to complete the purchase and pay the costs and expenses of the proceedings.
The opinion was filed March 2, 1934. I adhere to the conclusion therein reached. I am convinced that the authorities support the doctrine that the contract rights of the bondholders are fixed by the terms of their bonds and by the deed by which payment of them is secured.
The Supreme Court of the United States, in the case of Sage v. Central Railroad Company, 9 Otto 334, 25 L. Ed 394, in an opinion by Mr. Justice STRONG, so expressed its conviction of that doctrine as I read the opinion. Nothing contained in the opinion in the case of Shaw v. Little Rock and Fort Smith R. Co., 100 U.S. 605, 25 L.Ed. 757, referred to in the majority opinion, is inconsistent with the view above expressed. In that case the question was on the power of the Trustee to begin the suit. The court said, if there are differences of opinion among the bondholders as to what their interests require it is not improper that the Trustee should be governed by the voice of the majority acting in good faith and without collusion, if what they ask is not inconsistent with the provisions of histrust. The facts of the case are in no wise analogous to the case at *Page 629 bar. See also Werner, Harris Buck v. Equitable Trust Co., 35 Fed. Rep. 2d 513.
See also the dissenting opinion prepared by me in the case of Smith v. Massachusetts Mut. Life Ins. Co., 116 Fla. 390,156 South. Rep. 498.
The point on which I venture to differ from the majority of the Court has been fully discussed amongst us, and the view entertained by my associates as to the meaning of the terms of the trust deed and the inferences and deductions that may be drawn from them prevails over my views so I can only register my dissent with the regret that I am unable to convince them.
I think that the decision of reversal filed March 2, 1934, should be adhered to and not reversed.