Mims v. The Macon& Western Rialrd. Co.

• Decision Date: 31 August 1847
• Docket Number: No.49.,49.
• Citation: 3 Ga. 333
• Parties: Needham Mims, plaintiff in error. vs. The Macon& Western Rialroad Company, defendant in error.
• Court: Georgia Supreme Court

3 Ga. 333

Needham Mims, plaintiff in error. vs. The Macon& Western Rialroad Company, defendant in error.

No.49.

Supreme Court of the State of Georgia

AUGUST TERM, 1847.

In Equity. Bill to enforce vendor's lien. Tried before Judge Floyd. In Bibb Superior Court. May Term, 1847.

The facts and circumstances of the case, and the error assigned, are fully stated in the opinion delivered by the Supreme Court, to which the reader is referred.

His Honour, Judge Nisbet, having been of counsel below, gave no opinion.

John J. Gresham, for the plaintiff in error.

A vendor of real estate has a lien upon it for the unpaid pur-chase money, unless the circumstances of the case show an intention not to reserve the lien, or unless separate and independent security be taken.

Taking the bond or note of the purchaser does not waive the lien. Mackreth vs. Symmons, 15 Vesey R. 330; Nairn vs. Prowse. 6 id. 752; Stafford vs. Van Rensselaer, 9 Cowen R. 316; Garson vs. Green, 1 Johns. Ch. R. 308; Hughes vs. Kearney, 1 Sch. & Lefr. R. 132; Gibbons vs. Baddall, 2 Eq. Cas. abr. 682; Coppin vs. Coppin, 2 P. Wilms. R. 291; Brown vs. Gilman, 4 Wheat. R. 255; Deible vs. Barwick, 1 Blackf. R. 339; Cole vs. Scott, 2 Wash. R. 141; Story Eq. 462 to 482; ib. 644 to 549.

McDonald, and Poe & Nisbet, for the defendant in error.

Private property not to be taken for public use without just compensation. Prince 900.

In this case the money was tendered to the complainant, and he refused to accept it.

That the tender was sufficient, see Norris' Peake 431, 422; 8 Johns. R. 474.

The acceptance of the certificate of deposit was payment under the circumstances of this case.

But if it was not, the tender previously made and the refusal, vested the property in the defendant, and the defendant had a right to convey. Prince 316.

The defendant having a right to convey, the sale, under the decree of the Court of Chancery, vested the same title in the purchaser that he would have received had he taken the conveyance direct from the Monroe Rail Road Company.

By the refusal of the money when tendered, Mims lost his lien on the land, and only held a demand, against the Monroe Rail Road and Banking Company, for the amount of the assessment, and was reduced to a footing with the general creditors of the company. 18 Johns. R. 110.

By the Court. —Lumpkin, J., delivering the opinion.

In 1833, the Legislature of Georgia incorporated the Monroe Rail Road Company, with the following clause in their charter, section 10:

"In all or any case or cases, where land or private rights of waymay be required by said company, for the uses aforesaid, " (meaning the construction of the road,) "and the same cannot, for want of agreement between the parties as to price, or for any other cause, be purchased from the owner or owners thereof, the same may be taken at a valuation, to be made by commissioners or a majority of them, to be appointed by the Superior Court of the county where the land or right of way may be situated; and the said commissioners, before they act, shall severally take an oath before some justice of the peace, faithfully and impartially to discharge the duties assigned them. In making said valuation, the said commissioners shall take into consideration the loss or damage which may occur to the owner or owners, in consequence of the land being taken or the right of way obstructed, and also the benefit and advantage that he, she or they may receive from the establishment of said rail road, and shall state particularly the nature and amount of each; and the excess or loss or damage, over and above the benefit and advantage, shall form the measure of valuation of said land or right of way. The proceedings of said commissioners, accompanied with a full description and plat of said land, shall be returned under the hands and seals of said commissioners, or a majority of them, to the court whence said commission issued, there to remain on record; and the lands or right of way, shall vest in said company in fee simple, as soon as the valuation thereof may be paid, or, when refused, may be tendered." Prince 310. Meaning of course, when tendered may be refused.

By an amendment to the charter, passed in December, 1835, and accepted by the company, it is provided, section 2: "In all cases where by the 10th section of the original act, a valuation may have been made, or shall hereafter be made, of land through which the rail road passes, by the commissioners, that either party may have the right of appeal to a special jury, at the ensuing term of the Superior Court: Provided, that the progress of said road shall not be arrested by said appeal; and provided further, that said company shall give security to the party, for the payment of all damages that may be assessed by the special jury." Prince 345, 346. All of our rail road charters contain a provision similar to this; and it is inserted here to show the oft declared opinion of the Legislature, that the 8th amendment to the constitution of the United States, which declares that, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, " applies to the States and the State courts, as well as to Congress and the National courts.

In 1836, the Monroe Rail Road Company, having entered upon the work of constructing their road, and not being able to agree with Mims, through whose land it passed, as to the right of way, applied to the Superior Court of Bibb county to appoint commissioners to value the land of Mims, in terms of their charter. This was done, and the commissioners made two several assessments, one for the sum of $1,482 10, and the other for $175 00; no appeal was entered by either party. The amount of the assessment was tendered to Mims, in gold, by Peter Solomon, the cashier of the company, and refused. The company, on the 15th of February, 1840, placed in the hands of Henry G. Ross, the Clerk of the Superior Court of Bibb county, an instrument to this effect:

"Monroe Rail Road & Banking Co.,

Macon, Feb'y. 15, 1840.

"This is to certify, that H. G. Ros3, Esq., Clerk of the Superior Court of Bibb County, has deposited in this bank, for the assessment of damages by the commissioners, over the land of Needham Mims, through which the rail road passes, fourteen hundred and eighty-two dollar and ten cents; also, an additional sum of one hundred and seventy five dollars, for a second assessment; each in current funds, which shall be paid to his order hereon.

(Signed)

Jeremiah Leak, Cashier.

[Indorsed.] "I indorse this certificate to N. Mims, without recourse. H. G. Ross, Clerk."

Ross testified that this certificate was placed in his hands by the cashier of the company; that no money ever came into his hands, nor was any deposited by him in the bank of said company; that the company was in good credit when this certificate was placed in his possession; that he notified Mims that he held this certificate, and that he might get his money; other depositors got theirs; Mims had brought actions of trespass against Timonthy Matthews and Robert Redding, the contractors under said company, and failing to recover he was compelled to receive the certificate of deposit. Ross further stated, that at the time the certificate was turned over to Mims, the company was utterly and notoriously insolvent.

The Monroe Rail Road, with its equipments was sold under a decree in chancery for the benefit of all concerned, and purchased by the Macon & Western Rail Road Company. It was admittedthat Mims was no party to the bill under which this sale took place. It was in proof, that notice was given on the day and at the place of sale, by the agent of Mims, that he should assert his lien on the land seized by the company, for the amount of the valuation assessed by the commissioners. Moreover, it was in evidence, that before filing his bill he had demanded payment of said amount at the office of the Macon & Western Rail Road Company, which, upon consultation and taking time to consider, they refused to pay.

Mims now filed his bill for the enforcement of his lien, praying that the land which he formerly owned and occupied, and which had been seized and appropriated by the company, might be sold, and the proceeds applied to the payment of the said several sums assessed by the commissioners, with interest thereon.

The cause was submitted to the jury, under the instructions of his honour, Judge Floyd, who charged, "That the Act of the Legislature incorporating the Monroe Rail Road & Banking Company, which provides for the assessing of the damages for the right of way, created a remedy, and did not take away the common law remedy by tresspass or ejectment; that the plaintiff in error had his remedy as at common law, for the damages done to his premises, by the passage of the Monroe Rail Road through them. That the tender of the amount of the assessment made during the pending of the actions of tresspass against the contractors on the Monroe Rail Road, did not vest the title to the land of the plaintiff in error, in the Monroe Rail Road Company, under that clause of the constitution of the United States which declares, that 'private property shall not be taken for public use without just compensation;' and that the plaintiff in the actions of tresspass ought to have recovered. That the plaintiff in error, if he failed to recover in his actions of trespass, or if he chose to abandon them and trust the assessment of the right of way as a sale, would have a lien on the land which has been taken from him by the Rail Road Company; but that by receiving the certificate of deposit in this case, he had waived his lien and could not recover in this proceeding. The Court below then instructed the jury to decree in favour of the defendant, because the complainant had no lien on the land, as against the Monroe Rail Road Company; and the jury decreed accordingly.

To which charge and instruction of the...