22 Ind. 252 | Ind. | 1864
This was a proceeding by the appellants, who were the plaintiffs, against the appellees, to enjoin the sale, on execution, of personal property. The complaint alleges, substantially these facts? On February the 28th, 1851, the Jef
After the execution of the above deed, viz: on March 18, 1853, the Company, for the purpose of raising funds to con
And plaintiffs, in fact, say,-that the proceeds of the road are barely sufficient to pay the current expenses for running the same, and the interest on the bond debts; that all the property and rights conveyed by the deeds of trust, if ordered to be sold by a decree of Court, or sold under the provisions of the deeds, would not pay the amounts specified in the bonds, and that the Company have no means to pay the, bonds other than by running the road; that on October 22d, 1861, the defendant, McBroum, recovered a judgment in the Bartholomew Circuit Court, against the Company for 278 dollars, upon which an execution was issued and delivered to the sheriff’, who, by virtue of it, levied upon 150 cords of wood, and advertised the same for sale, &c. It is averred that the wood so levied on was purchased by the Company since the execution of said deeds, for fuel to be used in operating and running their road, and for that purpose it is held and owned by them, and to deprive the Company of that “ essential element in the use of the road would work irreparable injury to
The defendants demurred to the complaint. The demurrer was sustained, and plaintiffs excepted. Einal judgment was accordingly given, &e. The record presents this question: Does the trust deed cover the property levied on by the sheriff? Various cases are cited by the appellants, but in all of them the decision of the Court is made to turn upon the construction of the deed. Thus, in Coe v. Pennock and Hart, the “grant,” which “was of all the present, and future to be acquired property of the company in the road,” &c., was held to be an unreserved conveyance of the entire property of the company, &c. In the deed before us “wood” is not named, hut it conveys “the road, railways, bridges, locomotives, engines, cars, depots, right of way and land, with all buildings, shops, .tools, and machinery then in use, owned by them, or which they might thereafter acquire, * * * with the superstructure, rails, and other materials used thereon.” This stipulation seems to cover everything essential to the successful operation of the road. It could not be operated without fuel, and “wood” was, therefore, a “material necessary to be used thereon.” The appellees, however, rely on a subsequent stipulation in the deed which reads thus: “The Company reserve the right to survey, locate, and enjoy any extension of the road, and all branches they may deem proper, and to raise money for such purposes by sale of stock bonds or otherwise, which shall be free and unincumbered from, or in any way affected by this indenture. It being the full intention to grant to said trustee no other future rights or interest than those expressly given.” The term “wood,” it is true, is not employed in the former stipulation, but it conveys material used on the road, and wood being such a material, is plainly embraced in the words “other materials used thereon,” and is, therefore, “ expressly given.” As wood
But the deed of trust was, in effect, a mortgage, the Company had a right to redeem, and such right of redemption is a leviable interest which may be sold on execution. Heinberger v. Boyd, 18 Ind. 420. It follows that the sheriff' had a right to levy on and sell the mortgagor’s interest in the property, and he can not, therefore, be enjoined; though “the purchaser at sheriff’s sale will not be entitled to possession of the pi’operty sold, until he complies with the conditions of the mortgage.” See Heinberger v. Boyd, supra; 2 R. S., G. & H., p. 240, § 436. The plaintiffs were not entitled to an injunction, and tbe result is, the demurrer was well taken.
The judgment is affirmed, with costs.