B., C. R. & N. R. Co. v. Verry

48 Iowa 458 | Iowa | 1878

Rothrock, Ch. J.

1. railroad injuries: Ren. I. Section 9 of the act of the General Assembly of this State, passed April 8,-1862, was in these words: “Any judgment recovered against any railroad company in this State, for any injury to persons or property, shall be a lien, within the county where recovered, on the road, and real or other property of such company, and shall be prior and superior to the lien of any mortgage or trust deed which maj be hereafter executed, except liens for taxes. ”

This section was slightly modified and incorporated in the Code of 1873, as follows: .“A judgment against any railway corporation, for any injury to any person or property, shall be a lien, within the county where recovered, on the property of such corporation, and such lien shall be prior and superior to the lien of any mortgage or trust deed executed since the 4th day of July, 1862.” Code, § 1309.

Under the provisions of this statute a railway company may execute a mortgage upon its property, and a judgment for a personal injury sustained after the recording of the mortgage will be a lien prior and superior to the lien of the mortgage. The purchaser of railroad mortgage bonds is required to take notice that his lien, although prior in time, must be postponed to judgments for injuries to person or property occurring at any time after the execution of the mortgage.

If Yerry had recovered his judgment against the Burlington, Cedar Eapids & Minnesota Eailway Company before the conveyance of its property to the plaintiff, by the foreclosure deed, there is no doubt the lien of the judgment would have been prior and superior to any right the plaintiffs have in the property. But we do not think a right of action, or an action pending, is a lien under this statute. It expressly provides that the judgment shall be a lien prior and superior to the mortgage. There is no lien until judgment. The statute makes the judgment a prior lien “on the road, and real or other property of such company,” and “on the property of such corporation.”

When the judgment was rendered — that is, when the point of time arrived at which the statute declares there shall be a lien — the Burlington, Cedar Eapids & Minnesota Eailway Company had no property to which the judgment could attach' as a lien. The title to all its property had passed to the plaintiff herein several months before that time.

It will not do to hold that the plaintiff was bound to take notice of the pendency of Yerry’s action. There is nothing in the statute charging plaintiff with such notice. As against the plaintiff, Yerry must have a lien, if any, by virtue of his judgment, and not by reason of having an action pending when plaintiff became the owner of the property.

It is said by counsel for appellee that this statute “should be construed to mean the road and property owned by the corporation when the injury happened, and which was subject, to a mortgage.”

The difficulty under which appellee labors is that such a construction would be in plain and palpable violation of the unequivocal and explicit language of the statute, which excludes the'idea of the claim being a lien.

It must not be forgotten that the action was purely personal. The Burlington, Cedar Rapids & Minnesota Railway Company was the sole defendant, and no relief was asked but a judgment. Third parties were, therefore, not bound to take notice of the pendency of the action, and before judgment had the right to purchase the property of the defendant in the action clear of any lien.

We think the demurrer to the petition should have been overruled. As this disposes of the case, it is unnecessary to examine the other questions argued by counsel.

Reversed.