97 Ala. 495 | Ala. | 1892
— On December 24, 1886, Elwell Eastman and B. L. Smith, to secure four separate debts therein described, owing, respectively, to Helen N. Winn, Jessie H. Boyle, Mary L. Boyle and Robert E. Boyle, aggregating $22,533, executed to James J. Garrett a deed of trust to the lands described in the bill, with power of sale in default of payment of any of the secured debts. Afterwards, the Mary Lee Coal and Railway Company was organized as a corporation under the general laws of this State, with power, among other things, to build and operate a railroad between certain terminal points and to buy, hold and sell lands. This company desiring to construct its road, it became necessary to acquire, a right of way over the said lands, and after negotiation it obtained from said Eastman and Smith, on July 30, 1889, their deed with general warranty, conveying to a trustee for the company, for the recited consideration of ten dollars, a certain described strip of and through said lands, for the purposes of such right of way. By another deed, with like covenants, bearing date July 3, 1889, but acknowledged and alleged to have been executed on the 30th, they likewise conveyed to a trustee for the company, for the recited consideration of one hundred dollars, another strip of the land lying alongside the strip conveyed, as above stated, for a “railroad dummy line or street car line upon which cars may be propelled by horse, steam or electric power.” On August 21, 1889, they also conveyed by deed, with like covenants, to a trustee for the company, for the recited consideration of five hundred dollars, certain other lots of said land, thirty-eight in number, described by numbers and blocks, according to a certain ’ map. These lots, it seems, were purchased as a requirement of the vendors, because of injury it was thought would be done to them by the location of the right of way through them. In point of fact, there was an aggregate consideration of $2,367.00 paid by the company for these three purchases; and the same was paid, not to Eastman and Smith, but, with their consent, by the execution of its two notes therefor to said Helen N. Winn, maturing in the future, which notes were paid to her by the
Defendants, Smith, Eastman and H. J. Winn suffered decrees pro confesso. The other adult defendants (not including the railroad company) and the guardian ad litem of the infants answered, admitting the averments of the bill and consenting to the grant of the relief prayed. The Mary Lee Coal & Bailway Company answered, setting up its purchases,
Under the statutes regulating the-exercise of the right of eminent domain, a railroad, company duly chartered may acquire by condemnation an absolute and unincumbered right of "way for its road over the lands of others. It is a principle of equity that if a mortgage exist upon the premises, and it is necessary to the security of the mortgagee, he is entitled to receive the condemnation money, to be applied to the mortgage debt, and is invested with appropriate remedies to enforce the right. Formerly, in this State, it was a condition precedent to the institution of proceedings to condemn, that the company make effort to acquire the right of way by agreement with the owners and parties interested. It is yet its privilege, if not moral duty, to effect such conventional arrangement when it can be done, without resorting to legal proceedings to condemn. The appellant undertook to pursue that course in the present instance. It agreed with the owners, Smith and Eastman, upon the location and price of the right of way and lots, and obtained their deeds. The rights of the beneficiaries in the trust were, in part at least, recognized, and the purchase-money paid to one of them, Mrs. Winn. The evidence shows that the full value, and more, of an • absolute and unincumbered fee in the property purchased, was paid for it, and deeds with general warranty executed. The company then intended to build and equip its road at once, for permanent operation, involving an outlay of large sums of money. Taking these undisputed facts, to say nothing of evidence to which reference will presently be made,- we think it can not well be doubted that the company’s intent, purpose and effort were, throughout, to acquire an absolute and unincumbered right of way, and believed, when it gave its notes to Mrs. Winn and paid the same, that its
Mrs. Winn, by accepting the purchase-money for the property, charged with such knowledge, must be held to have released to appellant her charges, as a beneficiary in the trust, upon the rights of way and lots. We reach this conclusion without discussing the evidence wherein there is
The lands conveyed by the trust deed to complainant, other than said rights of way and lots, must first be sold, and the proceeds, (after paying the costs of suit) if sufficient to pay the same in full must be applied to the payment of the balance due Mrs. Winn and the amounts due the other secured creditors; the surplus, if any, tobe paid to Smith and Eastman. If insufficient to pay the claims in full, then interest must be computed on the said sum of $2,367.00 received by Mrs. Winn from the appellant from the time she received it until the day of distribution, and added to the principal. To the sum thus formed must be added the proceeds of the sale (after deducting costs) and the sum thus formed must be divided as follows : two-thirds thereof to ' said Jessie H., Mary Lee and Eobert E., in equal parts, the amount so ascertained to be paid them out of the said net proceeds of sale, if sufficient for that purpose. If insufficient then the whole of such net proceeds to be paid to them. The amount thus realized by them must be credited on their claims, respectively, against Eastman and Smith. Mrs. Winn must receive the balance of said net proceeds, if any, and her claims must stand credited with said $2,367.00 as of the day she received it, and be credited with the balance of said net proceeds of sale which she shall have received, if any, as of the day of the distribution. Whatever balance remains due on the claims of Jessie H., Mary Lee and Eobert E. after applying the credit, as above directed, may be paid by the appellant, if it so elects, by payment to the register for their use, and upon such payment the register must convey to it by deed all the right and title of the said trustee and all the beneficiaries in said trust in and to the said rights of way and lots. If such balances so due said Jesssie H., Mary Lee and Eobert E., be not paid, then said rights of way 'and lots must be sold. From that point on, in respect of said rights of way and lots, appellant must take the place of Mrs. Winn and be subrogated to her rights under the trust deed, and share, in her stead, in the distri
The decree of tbe Chancery Court is reversed, and a decree will be here entered in accordance with the direction of this opinion, and the cause remanded for further proceedings thereunder. Let the appellee, Helen N. Winn, pay the costs of appeal.
Eeversed, rendered and'remanded.
Eesponse to application for re-hearing:
— Pending an application for a re-hearing in this cause, tbe parties have made a compromise and settlement of the matters in dispute, and have submitted their agreement in writing to this court, requesting therein tbac the decree heretofore rendered in this court, at the present term, be so modified as that “the following portions of the lands mentioned in the bill, to-wit: a strip of land fifty feet in width, being twenty-five feet on each side of the center line of the railroad of the Mary Lee Coal & Bailway Company as now constructed, beginning at a point on the north boundary line of section eighteen (18), township seventeen (17), range two (2) west, where said railroad crosses said north boundary line; thence along the line of said railroad