Whitehead v. Vineyard

• Decision Date: 31 March 1872
• Citation: 50 Mo. 30
• Parties: ROBERT M. WHITEHEAD, Defendant in Error, v. ALFRED VINEYARD, Plaintiff in Error.
• Court: Missouri Supreme Court

50 Mo. 30

ROBERT M. WHITEHEAD, Defendant in Error,

v.ALFRED VINEYARD, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1872.

Error to Second District Court.

Perryman & Dinning, for plaintiff in error.

Dryden & Dryden, with J. L. Thomas, for defendant in error.

BLISS, Judge, delivered the opinion of the court.

The plaintiff brings ejectment, and claims title through Thos. Allen, who held the property as having belonged to the Iron Mountain Railroad Company. It is not disputed that the plaintiff established his right to the land, provided the railroad company had a right to purchase and hold the same, and provided it was included in the lien held by the State upon its property, and sold to said Allen when the State sold out the road. The District Court, in reversing the judgment of the Circuit Court, held the affirmation of these propositions, and they are the only questions presented for our review.

1. Section 1 of the charter provides that the company “may take, hold, use, possess and enjoy the fee-simple, or any other title or estate, in any lands, tenements or hereditaments, and the same to sell and dispose of at pleasure,” etc. (Acts of 1850-51, in Sess. Acts 1850-51, p. 479, and R.R. Laws, 40; see also act of 1864, in Sess. Acts 1863-4, p. 382, authorizing the company to sell or lease its lands not needed for the use of the roads.) It may be conceded that this power to hold and sell real estate should be held to be subordinate to the general objects of the corporation; still it is sufficient to pass title, and we need not now inquire further.

Upon the second inquiry, it is evident that the Legislature intended that the State should hold a lien upon all the property of the company, and that when it was foreclosed and the railroad sold out, and the title confirmed in said Allen, the sale was understood to cover everything which the company owned. To this view it is objected:

First. That the company did not own the land in dispute when the lien was created by statute, and that, therefore, it could not attach. True, the land was an after-purchase, but the inference is a non sequitur. If this were a sound view all the State liens for advances to build railroads would have been lost. In every instance it was to take effect upon prospective property, and such was the contract between the State and the respective companies who have been aided. This lien, for whatever it covered, was created by statutory contract referring to afteracquired property, and the statutory foreclosure afterwards made was expressly provided for by the acts under which the obligation was created. It is analogous to a mortgage of property not in esse, but which can be reached in equity.

As to such property, Judge Story, in Mitchell v. Winslow, 2 Sto. 639, says that courts of equity “support assignments, not only of choses in action, but of contingent interests and expectancies, and also of things which have no present, actual or potential existence, but rest in mere possibility only. In respect to the latter, it is true that the assignment can have no positive operation to transfer in presenti property and things not in esse, but it operates by way of present contract, to take effect and attach to the things assigned when and as soon as they come in esse, and it may be enforced as such a contract in rem in equity.” The controversy usually arises between the mortgagee and other creditors; and when there is no fraud, pledges of property not yet acquired have been uniformly sustained, as is shown in cases cited by counsel.

But the question is important in the present case only as showing the intention of the Legislature; for if the several acts bearing upon the subject show that after-acquired property was intended to be embraced in the lien of the State, this objection falls to the ground. The legislative intention constitutes the law, and...