85 F. 75 | 6th Cir. | 1898
after making the foregoing statement of facts, delivered the opinion of the court.
The right of the Nashville & Suburban Railway Company to appeal and assign error has been challenged. It was not a party to the original record. The purchasers at the foreclosure sale were Messrs. Smith, Fisher, and Middleton, who were acting in behalf of all the bondholders. The sale was confirmed, to them as purchasers. They subsequently transferred all their rights and interests to the
We come now to the defenses presented to the decree directing-payment of Hofstetter’s claim out of the proceeds of the foreclosure sale. In considering these, we shall treat the appellant the Nashville & Suburban Railway Company as standing precisely in the shoes of the bondholders’ committee who bought at the foreclosure-sale, and who have assigned their interest and title to it.' On no other theory, is it entitled to be heard at all in contesting Hofstetter’s decree.
The first of -these defenses is that the Suburban Railway Company has, since becoming the assignee of the title acquired under-the foreclosure sale under the decree of the circuit court, acquired a new and independent title, under the decree of a state chancery court enforcing a judgment lien in favor of Inez Colishaw, and’ against the Overland Railroad Company, which lien antedated the lien of the mortgages enforced in the circuit court. The purchasers-at the foreclosure sale bid the property in at $100,000. They have paid in but $5,000 of this amount. They may be required to pay in all or any part of the remaining $95,000, if needed to pay off intervening
“No railroad company shall have power to give or create any mortgage, or other kind of lien, on its railway property in this state, which shall he valid*80 and binding against judgments and decrees and executions therefrom, for timbers furnished and work and labor done on, or for damages done to persons and property in the operation of its railroad in this state.”
By the act of March 26, 1887, all of the provisions of chapter 72 of the act of 1877 were extended to street-railway companies. The court below held that the effect of this provision of the Tennessee statute law was to postpone the mortgages made by the Overland Railroad Company, and that the proceeds arising under the mortgage foreclosure sale were first liable to Hofstetter. The first objection made to this decree is that the Overland Railroad Company never availed itself of the power of consolidating with another company conferred by the act of 1877, and therefore the provision limiting its power to mortgage its property found in the third section of that act has no application to it. This act was construed by the Tennessee supreme court in Frazier v. Railway Co., 88 Tenn. 161, 12 S. W. 537, as a limitation upon the power of all railroad companies to make mortgages, not having that power under special and irrepealable charters. Touching the scope of this third section, the supreme court of Tennessee in that case said:
“The object of the act is to regulate and define the terms upon which the state was willing to confer upon railroad corporations the power to consolidate, and to define the powers of such consolidated companies. We have already seen that a railway corporation may not, without express authority, abdicate its functions and duties, either by a sale or lease or mortgage. A fortiori, it may not lose its own identity by suffering consolidation with another. It would therefore seem to need no support of argument that when the state, by legislation, undertook to confer upon ail railroad corporations the power to absorb another, or to suffer an absorption by consolidation, it might well couple the grant of so extraordinary power with the condition or proviso that the corporations so empowered to consolidate should not have power, before or after such consolidation, to make any mortgage or create any lien which should affect the class of creditors to which complainants belong.”
This construction by the highest court of Tennessee is one which we should accept and apply in respect to all Tennessee railroad companies not having, under special charters, the power of mortgaging their property. This provision operates only as a limitation upon the power of railway companies, commercial and street, to mortgage their property. Mortgages are not to have effect as against claims of the class mentioned, but no statutory lien in favor of such claims is thereby created. It follows, therefore, that a purchaser of the property of such a company, sold under judicial proceedings, or by bargain and sale, would take the property free from liability to creditors of the class mentioned in the statute, unless, by contract or some legal proceeding, they had become liens. This was the construction placed upon this statute by this court in Railroad Co. v. Evans, 31 U. S. App. 432-447, 14 C. C. A. 124, and 66 Fed. 818, where we said:
“The Tennessee supreme court bas construed this act as operating as a limitation upon tbe power of railroad companies to give a mortgage or create a lien upon tbeir property situated in tbe state, wbicb should be valid as against claims of tbe character mentioned in the act. Frazier v. Railway Co., 88 Tenn. 138, 12 S. W. 537. Such claims do not constitute liens by virtue of tbe act. Tbe act bas no other effect than to postpone mortgages and other liens created by act of tbe railroad company to claims of tbe character mentioned. A bona fide*81 sale would no! be a mortgage or lien, within the terms of the act, and the title of such purchaser would be unaffected by the act. If the Savannah & Western Railroad Company is a bona fide purchaser, It may set up the deed under which it holds as an answer to a claim, though clearly within the preferential class defined by the statute.”
But this record shows that long prior to this foreclosure proceeding the property and franchises of the Overland Bailroad Company had been sold under a creditors’ hill filed in the chancery court of Davidson county, Tenn., subject only to the mortgage then existing in favor of tlie Baltimore Trust <& Guarantee Company, and acquired through that judicial sale by the Nashville Traction Company. _ This was a wholly new and independent corporation, and the title it acquired by the sale under the decree of the state chancery court was a good equitable title, subject only to the mortgage aforesaid, and to the judgment lien in favor of Inez Golisliaw; neither the Baltimore Trust & Guarantee Company nor Inez Colishaw being parties to that bill, so far as this record shows. Unless, therefore, Ilof«tetter’s judgment was in some way a lien, the title of the traction company to the property and franchises of the Overland Bailroad Company Avas perfect, as against any and all claims in whose favor the act of 1877 postponed mortgages. In October, 1894, nearly a year before the date of Hofstet ter’s judgment, this successor corporation assumed the Overland mortgage, and made a second or additional mortgage to the Baltimore Trust & Guarantee Company; conveying every interest it had thus acquired, as well as all additions and improvements it, as owner, had placed upon the original property. This successor company had been in possession, as owner, for some time prior to this mortgage, and had for more than a year been operating the said railroad, wlnm Hofstelter recovered his judgment. Upon this state of facts, it is most apparent that the Over-land Bail-road Company, by the sale of all its property and franchises to a purchaser at judicial sale, had lost even its equity of redemption under its mortgage, and had no property Avhatever which could he reached by any creditor at large. The traction company had acquired its property and franchises subject alone to the lien of the mortgage in favor of the Baltimore Trust & Guarantee Company. Under this state of facts, the property sold under the decree of sale of the court below was the property of the traction company; the sale being for the satisfaction of the Overland Bailroad Company’s mortgage, as well as of the second or additional mortgage made to secure the same debt. The proceeds of sale were the proceeds arising from the sale of the traction company’s railroad, and were applicable to the satisfaction of the mortgage made by the Overland Bailroad Company only because1 (hat incumbrance had not been removed by the creditors’ proceeding, under which it had acquired title. Hofstet ter was not a creditor of the traction company, and had no right to ha\*e its property applied to the payment of his judgment against the Overland Bailroad Company. Of course, if Hofstet ter’s claim had constituted a lien from the time he sustained his injury, and that lien antedated the judicial sale under which the traction company became a purchaser, the title thus acquired would have fol