Chicago, I.&L. Ry. Co. v. McGuire

• Decision Date: 07 January 1903
• Citation: 65 N.E. 932,31 Ind.App. 110
• Parties: CHICAGO, I. & L. RY. CO. v. McGUIRE et al.
• Court: Indiana Appellate Court

31 Ind.App. 110

65 N.E. 932

CHICAGO, I. & L. RY. CO.

v.McGUIRE et al.¹

Appellate Court of Indiana, Division No. 1.

Jan. 7, 1903.

Appeal from circuit court, White county; J. V. Kent, Special Judge.

Action by Chicago, Indianapolis & Louisville Railway Company against Patrick McGuire and others. From a judgment in favor of defendants, and the denial of its motion for a new trial, plaintiff appeals. Transferred from the supreme court. Affirmed.

E. C. Field, G. W. Kretzinger, W. S. Kinnan, and Sellers & Uhl, for appellant. M. Winfield, C. C. Spencer, and Steis & Hathaway, for appellees.

HENLEY, J.

This was an action commenced by appellant to quiet its title to a certain parcel of land situated in Pulaski county, Ind. The cause was tried by a jury. After the evidence was concluded the trial judge instructed the jury to return a verdict for appellees. The question presented here arises upon the motion for a new trial, and questions the action of the trial court in so instructing the jury. The facts upon which the instruction was based are not in dispute. Both appellants and appellees claim title through the Louisville, New Albany & Chicago Railway Company. Appellant claims title through certain mortgages given by the Louisville, New Albany & Chicago Railway Company which were foreclosed in the United States circuit court for the district of Indiana, and through which foreclosure, and other conveyances following it, its title became vested. Appellee's title is claimed as follows: On the 24th day of September, 1896, the appellee Patrick McGuire recovered judgment in the White circuit court of Indiana against the Louisville, New Albany & Chicago Railway Company for $2,416.23 and costs. On the 16th day of October, 1897, the said McGuire caused an execution to be issued by the clerk of the White circuit court to the sheriff of Pulaski county. On the 18th day of October, 1897, the said sheriff levied the execution upon the real estate in dispute. On the 13th day of November, 1897, the sheriff sold this real estate at public sale, and the appellee Hathaway became its purchaser, and on the 23d day of November, 1898, the sheriff of Pulaski county executed to him a deed. A transcript of the McGuire judgment had been filed in the Pulaski circuit court on the 28th of January, 1897.

It is contended by appellant that the real estate in controversy is a part of its depot grounds at Francisville, Ind., and that the foreclosure and sale of the property of the Louisville, New Albany & Chicago Railway Company, through which foreclosure and sale appellant obtained whatever title it may have in the disputed premises, carried with it the title to said disputed premises. The judgment of McGuire against the Louisville, New Albany & Chicago Railway Company was obtained after the execution of the foreclosed mortgages through which appellant claims title. The contention of counsel for appellees is that the disputed property was not embraced within the mortgages and foreclosure, and that the same was not covered by the clause inserted in each mortgage intended to cover after-acquired property, and therefore could not have been embraced within the foreclosure and sale under the proceedings in the United States court. An abstract question of law is therefore presented, as to whether or not the property in dispute passed by the foreclosure and sale. There were three mortgages executed by the Louisville, New Albany & Chicago Railway Company,- one in 1886, one in 1890, and one in 1894; all being prior to the rendition of the McGuire judgment. In the mortgage of 1886 the description of after-acquired property is as follows: “Which may at any time hereafter during the continuance of this trust be acquired by the said railroad company for purposes connected with or appertaining to the railroad or railways above mentioned or described.” The description of the after-acquired property in the mortgage executed in 1890 was in the following words: “And all that it may in the future add, construct, or acquire for the purposes of and connected with or appertaining to the railroads or railways above mentioned and...