Gooch v. McGee

• Decision Date: 30 June 1880
• Parties: JAMES T. GOOCH v. J. H. MCGEE.
• Court: North Carolina Supreme Court

83 N.C. 59

35 Am.Rep. 558

JAMES T. GOOCH

v.J. H. MCGEE.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION to recover land, tried at Spring Term, 1879, of HALIFAX Superior Court, before Eure, J.

Case Agreed: In the year 1812, the legislature granted a charter to the Roanoke navigation company, under an act entitled “an act for improving the navigation of Roanoke river from the town of Halifax to the Virginia line,” and a company was duly organized thereunder at a meeting of the stockholders held in the town of Halifax on the fourth Monday of October, 1815; the proceedings of which meeting were ratified by the legislature at its session of 1816. And said corporation has since fully performed and complied with the provisions of its charter and the acts amendatory thereof. On the 23d of October, 1818, a tract of land belonging to the heirs of Daniel Weldon, deceased, (of which the land in dispute is a part) was condemned under the provisions of said charter, and an act subsequently passed (1817). Said land was necessary for the purposes of the company, was then paid for and entered, and has ever since been in possession of said company. The locus in quo (which is particularly described in the case) is occupied by the defendant, under a lease from said company. In 1878, judgments were recovered against the company in favor of certain persons, executions issued thereon, and at the sheriff's sale in 1879, the plaintiff became the purchaser. Under the act of 1874-'75, ch. 198, an action was instituted in Halifax superior court (and is now pending) for the dissolution of the company, appointment of a receiver, &c. If upon these facts the court shall be of opinion that the plaintiff is entitled to recover, then judgment shall be rendered in his favor for the possession of the land and for costs; but if otherwise, then a judgment of nonsuit shall be entered. The court adjudged in favor of plaintiff and ordered a writ of possession to issue, and the defendant appealed.

Messrs. Day & Zollicoffer, Gilliam & Gatling, Mullen & Moore and J. B. Batchelor, for plaintiff .

Mr. Thos. N. Hill, for defendant .

SMITH, C. J.

The plaintiff purchased at a sale under execution against the Roanoke navigation company, certain land which had been theretofore condemned for its use, under the provisions of the act of incorporation, including the bed covered by the waters of the canal, at its terminus near Weldon, and in this suit seeks to recover possession. The defendant had leased the land from the company for a period which had expired before the day of sale, but still continued in possession, refusing to surrender to the plainiff.

Under an act of the general assembly entitled “an act for the dissolution of the Roanoke navigation company,” passed at the session of 1874-'75, ch. 198, proceedings had been instituted in the superior court of Halifax and the complaint filed, but no further action taken at the date of sale. Two objections are urged for the appellant:

1. That the proceeding to annul the corporation and dispose of its property directed by the statute supersedes and renders nugatory the interference of a creditor, and that no title passed by the sheriff's deed; and

2. That the canal bed, as severable from its general property and franchise, is not subject to execution.

We propose to consider the last proposition first. In State v. Rives, 5 Ired., 297, a sale of so much of the road bed of the Portsmouth and Roanoke railroad company as was within the county of Northampton, under an execution at the instance of a judgment creditor, was held to be legal, and the purchaser to have acquired title to the land. This was because of the assumed want of any other remedy for the creditor, and by force of the statute which authorized a plaintiff to sue out against a corporation debtor, “a distringas or fieri facias, as he may think proper, and the said writs of distringas or fieri facias may be levied as well on the current money as on the goods, chattels, lands and tenements of the said corporation.” Rev. Stat., ch. 26, § 5. The result of upholding this diversion of the property from the original and intended purposes of its condemnation to the use of the company, and the injustice done the former owner, whose damages were lessened by the advantages to be derived from the construction of the proposed improvement, conducted the mind of the late Chief Justice, who presided at the trial in the superior court, to the conclusion that the sale was not authorized by law. In delivering the overruling opinion in this court, RUFFIN, C. J., declaring that “the legislature can prescribe what shall or shall not be the subject of execution,” proceeds to say: “We agree that the franchise cannot be sold. It is intangible and vested in an artificial being, of a particular organization, suited in the view of the legislature to the most proper and beneficial use of the franchise, and therefore it cannot be assigned to a person natural or artificial, to which the legislature has not committed its exercise and emolument,” and he adds: “We regret sincerely that it has hitherto escaped the attention of these companies and of the legislature, that some act was necessary, in order that such sales, when unavoidable, might be made with the least loss to the debtors and with the greatest advantage to the creditors and purchasers, by providing for keeping up the franchise with the estate.”

The correctness of the general proposition that the property, real and personal, of corporations formed for the prosecution of objects of personal benefit, as that belonging to individuals, may be seized and by sale appropriated to the payment of its debts, does not admit of question. Between them the law makes no distinction, as has been repeatedly decided. Maryland v. Bank, 6 Gill. & John., 205; Ev. L., &c., v. Buf. Hyd. Association, 64 N. Y., 561; Queen v. Vict. Park Co., 41 E. C. L. R., 544. But so far as the opinion, except by force of the statute, extends the liability to the estate of corporations created for public purposes, indispensable to the exercise of the conferred franchise and to the performance of correlative duties, it is not in harmony with adjudications elsewhere of the highest authority, and we are not disposed to enlarge the sphere of its operation. Some of the cases on the subject will be noticed.

In Ammant v. President, &c., Turnpike Co., 13 Serg. & Rawle, 210, the plaintiff bought at execution sale, “all the right, title, interest and claim,” of the company, “of, in and to ten miles of its road,” with specified limits, and it was held...