The opinion of the court was delivered, October 27th 1870, by
Agnew, J.
— The plaintiff in error, who was plaintiff in the execution, levied upon the property mentioned in the description of the sheriff as the property of the defendants, and proposed to sell it as such. He therefore affirms the defendants’ title by his own act. This is neither the time nor the manner of establishing the want of title of the defendants by reason of a want of power under their charter to take and hold the property.
The court below set aside the plaintiff’s levy and execution on the ground that the property had passed into the hands of a receiver appointed by the Supreme Court, under proceedings in equity on a mortgage given by the defendants. The question is therefore not upon the relation of the property to the railroad, to wit, whether appertenant to it or necessary for the enjoyment of the franchises of the company, but whether it was included in and passed under the mortgage. The property being owned by the company at the time of the execution of the mortgage, it clearly passed under the terms “ all and singular the estate and *162property real, personal and mixed ” of the company, and the words, “ Together with all and singular the lands, &c., &c., rights and interests, real estate, &c., &c., of and belonging to said party of the first part of every hind, nature and character in either of the states of New York, Pennsylvania and Ohio.” The company having power to mortgage all its property real and personal, and the instrument having embraced everything of a real and personal nature, it becomes immaterial whether the real property in question was necessary to the use or enjoyment of the railroad, or was not. Being included in the mortgage, it passed into the custody and management of the receiver appointed by this court to administer the affairs of the corporation for the benefit of the creditors. It was then in gremio legis, in legal custody, and to permit it to be levied and sold under the process of the Court of Common Pleas would at once raise a conflict of jurisdiction, and interfere with the right of the receiver of the Supreme Court to manage the property under his appointment. If the property might be taken piecemeal from the custody of the receiver, the remedy of the creditors under the mortgage would become worthless, or at least greatly imperilled. Ample authority has been cited by the defendants in error. If a creditor believes that the property was not legally mortgaged, or for any good reason should not pass into the hands of the receiver, his duty is to apply to the court having appointed the receiver to ask its discharge out of custody.in order that he may proceed against it. Eor these reasons we think the court below was right in setting aside the levy and execution.
Order affirmed.