Hamlin v. European & N.A. Ry. Co.

• Decision Date: 04 February 1881
• Citation: Hamlin v. European & N.A. Ry. Co., 72 Me. 83 (Me. 1881)
• Parties: HANNIBAL HAMLIN and another, trustees, in equity, v. EUROPEAN AND NORTH AMERICAN RAILWAY COMPANY and others. EGERTON R. BURPEE and another, in equity, v. HANNIBAL HAMLIN and another, trustees, and others.
• Court: Maine Supreme Court

72 Me. 83

HANNIBAL HAMLIN and another, trustees, in equity, v. EUROPEAN AND NORTH AMERICAN RAILWAY COMPANY and others.

EGERTON R. BURPEE and another, in equity, v. HANNIBAL HAMLIN and another, trustees, and others.

Supreme Judicial Court of Maine.

February 4, 1881

BILLS IN EQUITY, heard upon bills, answers and proofs.

The first is a bill brought by the trustees of the bondholders of the European and North American Railway Company against the company, and certain creditors (E. R. Burpee, F. A Wilson and James W. Emery,) of the consolidated company, who had levied upon lands of the company, purchased or contracted for subsequent to the mortgage to the trustees, and called the Crosby lot in Hampden, and the Hinckley lot, Lord lot and Lord and Veazie lot in Bangor, to restrain the defendants from disputing the title and possession of the trustees to such lots, & c.

The second is a bill by the levying creditors, who were parties defendant in the first bill, against the same trustees and the consolidated European and North American Railway Company and others, for relief and to remove the cloud upon their title to the lands levied upon.

The following are extracts from the mortgage of the European and North American Railway Company to Hannibal Hamlin and another, trustees, dated March 1, 1869:

" Now, therefore, the said party of the first part, in order to secure the payment of the principal and interest of said two thousand bonds, issued or to be issued as hereinbefore provided, and in consideration of the premises, and of one dollar to it paid by said parties of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold, conveyed, and transferred, and by these presents does grant, bargain, sell, convey and transfer unto said parties of the second part, their successor or successors in the trusts herein created …. also, all its right, title and interest in and to, all and singular, its property, real and personal, of whatsoever nature and description, now possessed, or to be hereafter acquired: including its railway, equipments and appurtenances; all its rights, privileges, franchises and easements; all buildings used in connection with said railway or the business thereof, and all lands and grounds on which the same may stand or connected therewith; also, all locomotives, tenders, cars, rolling stock, machinery, tools, implements, fuel materials, and all other equipments for the constructing, maintaining, operating, repairing and replacing the said railway or its appurtenances, or any part thereof… ."

" To have and to hold the aforegranted premises, with all the rights, privileges, easements and appurtenances thereto belonging, hereby conveyed or intended to be conveyed, to the said parties of the second part, their successors, in the trusts hereof, and their heirs and assigns, to their use and behoof, but only upon the trusts hereinafter set forth."

* * * * * * *

" Eighth. It is further agreed, that the said party of the first part shall at the request of said trustees, execute and deliver such further deeds of conveyance of all the property now possessed, or to be hereafter acquired, by said party of the first part, herein conveyed or intended to be conveyed, and upon the trusts herein set forth, as may be necessary for the better security of said bonds."

Other material facts appear in the opinion.

Charles P. Stetson and William L. Putnam, for Hamlin and Hayford, trustees, cited, in addition to authorities cited by them in Hamlin et al. v. Jerrard, 72 Me. 62; Blake v. Rollins, 69 Me. 156; Emerson v. E. & N. A. Ry. Co. 67 Me. 393; Coverdale v. Aldrich, 19 Pick. 395; Gue v. Tide Water Canal Co. 24 How. 257; Eldrich v. Smith, 34 Vt. 484; Willink v. Morris Canal Co. 3 Green's Ch. 377; Shamokin R. R. Co. v. Livermore, 47 Pa.St. 468; K. & P. R. R. Co. v. P. & K. R. R. Co. 59 Me. 22; Holroyd v. Marshall, 10 H. of L. Cas. 193; The Key City, 14 Wall. 653; Clark v. Flint, 22 Pick. 237; Muer v. Berkshire, 52 Mich. 149; Cobb v. Dyer, 69 Me. 498; Barnard v. N. & W. R. R. Co. 14 N. B. R. 469; Palmer v. Forbes, 23 Ill. 300; Buck v. Seymour, 46 Conn. 156; Hinckley v. Haines, 69 Me. 76; Raymond v. Clark, 46 Conn. 129; Hooper v. Bourne, 3 L. R. 2 B. D. 258; Betts v. G. E. Ry. Co. L. R. 3 Ex. D. 182; N. Y. C. & H. R. R. Co. 77 N.Y. 245; Clouston v. Shearer, 99 Mass. 209; Gerry v. Stimson, 60 Me. 189; R. S., c. 51 § § 53-56; Jones' Railroad Securities, 416.

James W. Emery, Woodward Emery, and Wilson and Woodward, for Burpee, Emery and Wilson.

The question is between creditors,--bond-holders and judgment creditors. Equity is no more favorable to one set than the other.

The contract for purchase of the three lots of land were made with the European and North American Railway Company and assigns, in September and October, 1870.

The consolidation of the " Maine" company, and the " New Brunswick" company, took place December 1, 1872, and by § 6, of the articles of agreement, the franchises, property, and " causes in action" of the two old companies, were assigned to the " new corporation" as the consolidated company is called in the agreement, ratified by the legislature of Maine, laws of 1874, c. 609. These contracts being causes in action, were then assigned to the consolidated company, which entered into possession of the entire property at that time, to hold, own, and enjoy the same, and from that time until the attachment and seizure and sale on execution, the legal and equitable title in and to those contracts, was fully in the consolidated company. Bath v. Miller, 53 Me. 308; Emerson v. E. and N. A. R'y, 67 Me. 387.

Hamlin and Hayford, trustees, under the first mortgage, claim that said contracts are covered by their mortgage as " after-acquired" property, or as an " " accretion" to the property originally mortgaged. We reply that upon scrutiny of the language of the mortgage, the European and North American Railway Company mortgaged its property, " now possessed or to be hereafter acquired," and by no possibility could it cover property not acquired by itself. R. R. Co. v. Maine, 6 Otto 499; State v. M C. R. R. Co. 66 Me. 488; Bouvier's Law Dict. " Accretion; " Young v. Northern Illinois Coal and Iron Company, U. S. C. C. N. D. Ills. 1880; The " Reporter," March 3, 1880.

This levy was extended more than a year since, and we claim title under the levy, the proceedings being regular. Brackett v. McKenney, 55 Me. 504.

The trustees under both said mortgages claim under their respective mortgages. It cannot be claimed that this property was covered by either mortgage. It is not essential to its business, nor is it held by the Company's trustees, now, for any legitimate railway purposes. Seymour v. Canandaigua and N. F. R. R. 25 Barb. 284; Western Penn. C. C. v. Johnston, 59 Penn. 290; Calhoun v. Paducah and Memphis R. R. Co. U. S. C. C. W. D. Tenn. April 7, 1879; " " " " Reporter," September 24 1879.

The criterion is necessity and essentiality for railway purposes, and not what, in the opinion of a sanguine railway official, would be gratifying to him to have at hand for future use of a railway in case it increased its business and manufactured new wants. Parish v. Wheeler, 22 N.Y. 494; 1 Jones on Mortgages, § 156.

As the company never have and never can, without an additional franchise, use that property, it cannot be considered as included or embraced by the mortgages.

Counsel in an additional brief cited: Pierce v. Emery, 32 N.H. 484; R. S., of 1857,c. 51, § § 31, 33; Commonwealth v. Smith, 10 Allen 448; Milw. & Minn. R. R. Co. v. Milw. West. R. R. Co. 20 Wis. 187; Brainard v. Peck, 34 Vt. 496; Holbrook v. Finney, 4 Mass. 566; Burns v. Thayer, 101 Mass. 428, and cases cited; Brown v. Tyler, 8 Gray 135; Smith v. Eastern C. Co. 124 Mass. 154; Noyes v. Rich, 52 Maine 115; Galveston Railroad v. Cowdry. 11 Wall. 459; R. S., 1871, c. 76, § § 29, 30; Virginia v. Ches. & Ohio Canal Co. 32 Md. 501; Swan v. Patterson, 7 Md. 164; Brown v. Chesterville, 63 Me. 241; Bacon v. Bacon, 17 Pick. 134; Forbes v. Appleton, 5 Cush. 115; Crompton v. Anthony, 13 Allen 33; Barry v. Abbot, 100 Mass. 396; Anthracite Ins. Co v. Sears, 109 Mass. 384; Powell v. North Miss. R. Co. 40 Mo. 63; Racine & Miss. R. Co. v. Farmers' Loan & T. Co. 49 Ill. 331; Selma, Roam & D. R. Co. v. Harbin, 40 Geo. 706; McMahan v. Morrison et als. 16 Ind. 172; State v. Bailey, Id. 51; Paine et als. v. Lake E. & L. R. Co. 31 Ind. 283; Lauman v. Lebanon Valley, R. Co. 30 Penn. St. 42; Tagart et al. v. Northern R. R. Co. 29 Mary. 559; N. J. Midland C. Co. v. Strait, 35 N. J. Law, 325; Ohio v. Sherman, 22 Ohio 428; Clearwater v. Meridith, 1 Wall. 25; Shields v. Ohio, 26 Ohio 86; Shaw v. Norfolk Co. R. Co. 16 Gray 407; Shields v. Ohio, 95 U.S. 319; Seymour v. Canandaigua & Niagara Falls R. R. Co. 25 Barb. 284; Walsh v. Barton, 24 Ohio St. 28; Shamokin Valley R. R. Co. v. Livermore, 47 Pa.St. 465; Farmers' Loan and Trust Co. v. Commercial Bank, 11 Wis. 207; Same v. Cary, 13 Wis. 110; Same v. Commercial Bank of Racine, 15 Wis. 424; Dinsmore v. Racine & Mil. R. R. Co. 12 Wis. 649; Meyer v. Johnson, 53 Ala. 237; State v. Commissioners of Mansfield, 3 Zab. (23 N. J. Law), 510.

Henry W. Paine and Barker, Vose and Barker, for Edward Cushing, furnished very able briefs, contending that the title to the lands in question, was in Cushing as trustee of the consolidated European and North American Railway Company. See their brief in the preceding case.

SYMONDS J.

The three parcels of real estate in Bangor referred to as the Hinckley, Lord, and Lord and Veazie lots, the European and North American Railway Company, in the fall of 1870 contracted in writing to purchase. Possession was then taken by the corporation, and has been retained by those in...