Youngman v. Elmira, &c., Railroad Co.

• Decision Date: 05 May 1870
• Citation: 65 Pa. 278
• Parties: Youngman <I>et al. versus</I> The Elmira and Williamsport Railroad Co.
• Court: Pennsylvania Supreme Court

Page 278

65 Pa. 278

Youngman et al. versus The Elmira and Williamsport Railroad Co.

Supreme Court of Pennsylvania.

April 2, 1870.

May 5, 1870.

April 2d 1870.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Error to the Court of Common Pleas of Lycoming county: of January Term 1870, No. 323.

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G. W. Youngman and J. W. Comly, for plaintiffs in error.— The lot was not used or necessary for the railroad, and the company was authorized to hold only 5 acres: Shamokin R. R. v. Livermore, 11 Wright 465. The company did not own the land at the date of the mortgages of 1853 and 1854, and therefore could not mortgage it: 4 Kent's Com. 154. A mortgage of after-acquired property can have no validity against third persons having liens on the property: Coe v. Columbus & Cin. R. R., 10 Ohio St. R. 391; 1 Hilliard on Mortgages 7. The Supreme Court had no jurisdiction to decree the sale: Bradly v. Chester V. R. R., 12 Casey 141. The application should have been to the court that had jurisdiction of the accounts of the trustees: Ashhurst v. Montour Iron Co, 11 Casey 30. The mortgage at best was in the nature of one to secure advances and its lien attached only when the bonds passed to a bonâ fide holder: McClure v. Roman, 2 P. F. Smith 458; Bank's Appeal, 12 Casey 170; Terhoven v. Kerns, 2 Barr 96.

H. C. Parsons and Armstrong & Linn, for defendants in error.— A purchase of land in excess of its charter can be avoided only by the Commonwealth: Leazure v. Hillegas, 7 S. & R. 313; Goundie v. Northampton Water Company, 7 Barr 233. A railroad company may mortgage after-acquired property: Peirce on Railroad Law 530. The legislative recognition of the decree validated it: Menges v. Dentler, 9 Casey 499. The decree cannot be examined collaterally: Thomas v. Harris, 7 Wright 231.

The opinion of the court was delivered, May 5th 1870, by SHARSWOOD, J.

Several points have been made and questions discussed in the able and elaborate argument of the learned counsel for the plaintiffs in error, which, in the view we take of the case, it is unnecessary here to consider. The title of the premises, it is agreed, was in Willard prior to August 2d 1856. On that day he conveyed to the Williamsport and Elmira Railroad Company. On the 31st of March 1857, this company executed a mortgage to trustees to secure certain bonds to be issued.

On the 28th April 1860, these trustees united with the trustees under two prior mortgages, in a conveyance to Edward S. Whelen, who by deed dated May 11th 1860, conveyed to the Elmira and Williamsport Railroad Company, the plaintiff below.

The defendant's title was grounded on a judgment recovered by John Jones against the Williamsport and Elmira Railroad Company, in the District Court for the city and county of Philadelphia, a testatum fieri facias issued thereon, and entered on the docket of Lycoming county January 16th 1860.

The lien, therefore, upon which his title vested, and to which it must relate, was subsequent to the date of the mortgage of 1857.

Whether the sale made by the trustees under the mortgage was pursuant to the powers contained in that instrument, so as to bar and extinguish the equity of redemption of the mortgagor, is a question which does not arise on this record. The conveyance to Whelen was at least effectual as an assignment of the mortgage, and he and his assigns from that time stood in the shoes of the original mortgagees: 1 Washburne on Real Property 519. That a mortgagee or his assignee may maintain ejectment and recover possession of the mortgaged property before the condition is broken, unless there is a stipulation in the instrument to the contrary, is too well settled in this state to be any longer a subject of question: Lessee of Simpson v. Ammon, 1 Binn. 175; Smith v. Shuler, 12 S. & R. 240; Knaub v. Esseck, 2 Watts 282; Martin v. Jackson, 3 Casey 504. The provision made in the mortgage of 1857, on the subject of possession, plainly excludes the premises claimed in this ejectment. The language is, "subject nevertheless until default shall have occurred as hereinafter mentioned to the possession and use of the said party of the first part, their successors and assigns, and their president, managers, officers and agents, on the road of the said company, or on any other road, subject to this mortgage, according to the effect and meaning of the several acts and supplementary acts of the legislature, incorporating or concerning the said party of the first part." Now the contention of the plaintiffs in error must be and has been that the premises in dispute form no part of the road, else their title by the sheriff's sale under the testatum fails altogether. The road with all its appertenances being necessary to the exercise of the franchises granted by the sale, could not be levied on and sold under an execution on a judgment against the corporation: Ammant v. The New Alexandria and Pittsburg Turnpike Road, 13 S. & R. 210; The Susquehanna Canal Co. v. Bonham, 9 W. & S. 29; Shamokin Valley Railroad Co. v. Livermore, 11 Wright 465. The lot in question then being no part of the road is left unaffected by this provision, and the right of the mortgagee to enforce his legal title by an ejectment remains as at common law. The plaintiffs in error having succeeded to the rights of the mortgagors, could doubtless have set up any equity in them to defeat the recovery. They could have shown that no bonds had been issued for the security of which the mortgage had been given, or that if issued ...