58 Ala. 241 | Ala. | 1877
The argument is suggested that by the purchase of the property in controversy, The New Orleans, Mobile & Chattanooga Bailroad Company did an act ultra vires, and that, therefore, the railroad corporation did not acquire any title which it could convey or pledge by mortgage deed. The title of plaintiff below — appellee here — rests on these foundations : First, a legal title to the premises in the defendant corporation; second, a judgment and execution lien against such corporation ; and, third, a levy upon, and sale and conveyance of the title of the lands to the plaintiff below. A purchaser at sheriff’s sale acquires only such title as the defendant in execution had; and if his ownership be not a legal title, the holder of such deed can not maintain ejectment. — See You v. Flinn, 34 Ala. 409, 415, and authorities. Both parties, plaintiff and defendant, in the court below, trace their title to a common origin, the New Orleans, Mobile & Chattanoog Baailroad Company. Donovan, the plaintiff, was required to show a legal title in the corporation to maintain his suit; while the defendant could stand still and rely on the weakness of his adversary’s title. We think the doctrine of estoppel can not be invoked in this case to benefit appellee. His purchase at sheriff’s sale is an affirmation that the railroad corporation held a title— a legal title. His success in this suit depends on that. He cannot be heard, in one and the same suit, to assert that other and incompatible proposition, that the corporation owned no property or interest in the lots which it could convey. The railroad company either had title, or it had not. We think both parties are estopped from disputing the common source of their titles.— Gantt v. Cowan, 27 Ala. 582.
If the contract by which the railroad company acquired the lots had remained executory, and there had been a suit to enforce such contract, or to recover for its breach, then the question of ultra vires -would have been material; and if successfully asserted would have defeated a recovery, whether the suit was brought by or against the corporation.— Grand Lodge v. Waddill, 36 Ala. 313; Waddill v. Ala. & Tenn. R. R. 35 Ala. 323; Dil. Munic. Corp. § 381, and note 2, 749 ; Abb. Corp. 258, §§ 414, 415; 870-1, §§ 3, 4, 12 ; Cooley Cons. Lim. 196.
And in some other forms of proceeding, such, for instance,
It is neither a ground of recovery or defense in this action. —Abb. Corp. 258, §§416, 423; Ib. 870-1, §§9, 10, 11; Whitehead v. Vineyard, 50 Mo. 30; 3 Nev. 386, supra; Waldo v. Chicago St. P. R. R. Co. 14 Wisconsin, 575; Farmers & M. Bank v. Railroad Co. 17 Wis. 372.
We think the sole question necessary to be considered in this case is, whether the mortgages embrace and convey the lots and wharves in controversy. If the terms of the granting clauses are broad enough and specific enough to include them, then we think there is no question that the title to the defendants is paramount to that of plaintiff. On the other hand, if the mortgages do not convey them, then the plaintiff has the superior title. We quote from the act of incorporation only as aid in enabling us to determine the true meaning and scope of the mortgage conveyances.
The act which incorporated the New Orleans, Mobile & Chattanooga Eailroad Company (now New Orleans, Mobile & Texas Eailroad Company), approved Nov. 24,1866 — Pampb, Acts, 6 — contains the following grants of power ; and, it fis believed, none other that bear on any question presented by this record:
By section 1, the corporation is “authorized to have and to hold real and personal property for the object, purpose, and business of said corporation within this State, or within any other State, sovereignty or government that may sanction, authorize, and permit the same.”
By section 3, “ to own and possess any real and personal estate that may be granted, devised or given to it, by or from any person or persons, corporation or association, and to obtain by purchase, and to own and possess any real and personal estate that may be necessary and convenient for the construction, maintenance, and management of the said railroads, .... to take and hold for the same and for the purpose of necessary depots, stations, cuttings, turnouts, and for obtaining stone, and gravel, and timber for the construction of said railroads, and lands belonging to the said State of Alabama, and extend along or adjacent to the route or course of said railroads, that may be necessary for the construction, maintenance and security of said railroads; and said corporation is also hereby authorized to lay out their said railroads, or either of them, within the State of
Section 6 contains the following language: “ That said corporation, being hereby authorized to purchase, receive, and hold such real estate as may be necessary and convenient in accomplishing the object for which this corporation is organized, it may, by its agents, surveyors, engineers, servants, enter upon all lands and tenements through which it may conclude to make such railroads; and survey, lay out, and construct the same, and may agree and contract for the land, right of way, with the owners of the land through which it extends, to make said roads.”
Section 15 : “And, in like manner, this corporation may obtain, by purchase or grant, from any person or corporation, and afterwards maintain, manage, use, and enjoy any railroad, railroad property and appurtenances, any steamboats, piers, wharves, and the appurtenances thereunto belonging, that the said directors may deem necessary, profitable and convenient for this corporation to own, use, and manage in connection with its said railroads.”
Section 17 : “ That this corporation is authorized and empowered, from time to time, to borrow money, or to purchase property upon its own credit, for the purpose of constructing and maintaining said railroads, or establishing continuous and connecting line'of railroads, as heretofore provided ; and, as evidence of the indebtedness of said company for such loans, on the purchase of said property, may issue its corporate bonds and promissory notes, bearing interest at a rate not to exceed eight per'cent, per annum, and to secure the payment of said bonds and notes, may mortgage its railroad, its capital stock, its corporate franchises, and any of its real and personal property, or any part or portion of the same.”
On the first day of January, 1869, the said railroad corporation executed its first mortgage to trustees to secure the payment of its first mortgage bonds, about four millions of dollars in amount; and therein conveyed “the railroad of the party of the first part, lying between the city of New Orleans, in the State of Louisana, and the city of Mobile, in the State of Alabama, and within the limits of said cities, as the same is located, surveyed, and constructed, or shall be here-
On the 8th day of March, 1869, the said corporation made a second mortgage to trustees, to secure the payment of its second mortgage bonds, about four millions additional, and therein conveyed “ any and all railroad or railroads of the said party of the first part, lying in the States of Texas, Louisiana, Mississippi, Alabama, Georgia and Tennessee, or any or either of them, constituting parts, portions or sections of its main or branch lines of railroads on the general route prescribed by its charter, or any amendment thereto, or hereafter to be authorized, whether now owned or hereafter
The term railroad, in its broadest sense, has been sometimes ruled to be very comprehensive, and to include within it the franchise, easement or right of way, road-bed, superstructure, depot buildings, turn-outs, rolling stock, shops, tools, materials, and all other property, real and personal, owned and used in connection with the road, or its operation. Pierce v. Emery, 32 N. H. 484. The grants of power to acquire real estate, found in the act incorporating the New Orleans, Mobile & Chattanooga Railroad Company, are attended and qualified by the expressions, “ that may be necessary, convenient, for the construction, maintenance, management, security of the railroad.” The clause most relied on by appellants — that which gives authority to acquire steamboats, piers, wharves, &c. — limits the power of the directors in the matter of their purchase, to such as they may “ deem necessary, profitable and convenient for this corporation to own, use and manage in connection with its said railroads.” So, in the mortgages, qualifying clauses abound; such as, “ the lands occupied by said railroad, or hereafter acquired, owned and occupied by said party of the first part, including all depots, &e., now owned and occupied, or hereafter acquired, in connection with the said portion of said railroads, situate or lying upon or within the limits of said cities, or upon or adjacent to the said portion of said railroad and the route or line thereof.”
The clause in the second mortgage most relied on is as follows : “Including all depots, station houses, engine houses, car houses, freight houses, store houses, wharves, warehouses, wood houses or sheds, and all machine shops, repair shojDS, business offices, and other shops, offices and buildings, now owned and occupied, or hereafter to be acquired and used in connection with its said railroad or railroads, or branches, or any part thereof, together with . . steamboats, tug-boats, and other boats and vessels, and their engines, boilers, machinery, tackle, apparel and furniture, fixtures, fuel and materials, and all other personal property appertaining to, or used, or hereafter to be used by the party of the first part, exclusively for the constructing, operating, repairing, replacing, or conducting the business of its said railroad, or railroads or branches above mentioned, or any part thereof.”
In the State v. Commissioners of Mansfield, 3 Zabr. 610, the question was, whether a legislative commutation, or exemption from taxes, accorded to a railroad company, exempted from levy and assessment of taxes, certain houses owned by the railroad company, “ situate near the line of their road, and used exclusively by workmen and mechanics in the employ of the company.” The charter of the company declared “ that no other tax or impost shall be levied or assessed upon the said company.” The court ruled that the houses did not fall within the exemption, and employed the following language: “ Power to construct a railroad, and establish transportation lines upon it, necessarily includes the essential appendages required to complete and maintain such a work and carry on such a business; as the power to erect and maintain suitable depots, car houses, water tanks, shops for repairing engines, &c., houses for switch and bridge tenders, coal or wood yards for fuel for the use of their locomotives, &c., and these are within the fair construction of the exemption clause, because they are necessary and indispensable to the operations of the company, and the accomplishment of the objects of their charter. But there must be a limit somewhere to this incidental power of the company to enlarge its operations and extend its property, without taxation, under this exempting clause, and that limitation, I think, must be fixed tuhere the necessity ends, and the mere convenience begins. The necessary appendages of a railroad and transportation company are one thing, and those appendages which maybe convenient means of increasing the advantages and profits of the company are another thing.”
In Walsh v. Barton, 24 Ohio State, 28, the question, as in this case, was between an execution purchaser and a prior mortgagee. The court said: “The testimony shows that the railroad was not located on the lands embraced in the purchase of the defendant below, nor were the lots purchased by him ever used or appropriated for railroad purposes. The question then, is this: Was the entire tract of land embraced in'the mortgage? We think not. The words “used or appropriated for the operating or maintaining the said road,” restrict the operation of the granting words, con
In Shamokin Valley Railroad Co. v. Livermore, 47 Penn. State, 465, a railroad company, holding town lots adjoining their road bed, ostensibly for a train to connect with river navigation, having mortgaged the entire road with its corporate privileges and appurtenances, but without specific mention of the lots, became embarrassed, and the mortgaged property was sold under proceedings thereon by the sheriff; the lots having been again sold under execution, against the company, and bought by the plaintiffs therein, in an ejectment therefor by them against the purchasers under the mortgage, the jury were instructed that if the lots were not appurtenant to the road, and essential and indispensably necessary to the enjoyment of its franchises, and as such included in the mortgage, the plaintiffs were entitled to recover; referring the question of appurtenancy and necessity to them as matters of fact. It was held that the instruction was free from error. We think the word “indispensably” before the adjective “necessary,” states the rule too strongly; and that it should have been omitted.
In Dinsmore v. Racine and Mississippi R. R. Co. 12 Wisconsin, 649, the granting clause of the mortgage was: “The railroad company granted and sold,” &e., “all their, railroad, with its superstructure', track and all other appurtenances, made or to be made in the State of Wisconsin, . . and all the right and title of the said parties of the first part, to the land on which the said railroad is and may be constructed, together with all rights of way now acquired and obtained, or hereafter to be acquired or obtained by the said parties of tho first part, and including the depots, engine-houses, shops and other constructions at the city of Racine aforesaid, and at said town of Beloit, and all other places
It results from what we have said above that the mortgages conveyed only such property, real and personal, as was useful and necessary, and employed in the construction, maintenance, operation, preservation, repair, or security of the road; and that property owned or acquired, and not used, or to be used in connection with the railroad, and in promotion of the direct and proximate purposes of its construction, was not thereby conveyed. Buying off an opposition line of steamers, with a view, not of employing, but of withdrawing them from the field of competition, with all attendant stipulations and incidents, falls without the pale of powers conferred by the act of incorporation, and is not covered by any provision in the granting clauses of the mortgages.
The several rulings of the Circuit Court, excepted to, are in accordance with the views above expressed, and the judgment of the Circuit Court is affirmed,
