Oakland Railway Co. v. Keenan

The opinion of the court was delivered, November 18th 1867, by Woodward, C. J. This was a certiorari in the court below to remove the proceedings had before two justices of the peace and a jury of twelve men, to recover possession of real estate purchased at a sheriff’s sale. The certiorari brought into the Common Pleas nothing but the record of the proceedings before the [202] magistrates and jury, and nothing else is before us, of course, upon this writ of error. Prom that record, it appears that Thomas J. Keenan, on the 27th January 1865, purchased at sheriff’s sale a certain tract or parcel of land containing eight acres, more or less, and subject to the rights of the said Oakland Railway Company, to lay, keep, and retain its railway tracks over said land ; that said company is now in possession of said premises, and was the defendant as whose property it was sold ; that said Keenan demanded possession of said premises, by notice to said company on the 2d March 1866 ; and that they refused to surrender up and deliver the possession. The record then goes on to recite regular legal proceedings before the aldermen, and concludes with a judgment in favor of Keenan for the premises, and his costs and damages. Accompanying the record is- the inquisition taken by the justices and the jury, finding all the facts required by the Act of 16th June 1836, relating to executions : Purd. 450. Strictly speaking no question is raised upon this record, except whether the provisions of the Act of 1836, for obtaining possession of real estate sold at sheriff’s sale, applies to corporations, and on that question we have no doubts. In Reed v. Penrose, 12 Casey 240, will be found an exposition of the 72d section of the act, from which it will be seen that whilst sequestration is provided for insolvent companies, solvent companies are subject to the ordinary forms of execution. If no sufficient personal property is found, an execution against a corporation is to be levied upon its real estate, and the officer shall “ thereupon proceed in the manner provided in other cases for the sale of land upon execution.” The other cases referred to here, are cases of execution against judgment-debtors, who are natural persons. The 105th section provides, “ that whenever any lands or tenements shall be sold by virtue of any execution aforesaid,” the purchaser shall have summary process to obtain the possession. These comprehensive expressions, “ any lands” and “ any execution aforesaid,” include proceedings against the lands of corporations which are prescribed in the prior sections. In a word, the Act of 1.836 applies to executions against solvent corporations in the same manner as it applies to executions against individuals, and of course all the provisions for delivering possession to the purchaser at sheriff’s sale have the same application in corporation cases as in others. The proceedings may he arrested by making the oath prescribed by the 116th section of the act, but neither that oath nor anything to the same effect was offered. The company made two objections to Keenan’s proceedings before the justices — the first of which was, that they held the land for railroad purposes under its charter, and therefore it'could not be legally sold upon execu [203] tion; and second, that no demand or notice had been served upon them according to law. This second objection may be disposed of at once, by saying that the inquest concludes the question of notice. The company appeared before the justices and jury, and it was there found that legal demand had been made — a finding which, in the present posture of the case, excludes further inquiry upon that point. As to the first objection, it ought to be sufficient to say that it does not suggest the ground for arresting the proceedings which the Act of Assembly provides. Neither the objection before the justices nor the president’s affidavit, conformed to the statute, and they were properly overruled. As to the other more grave objection, that the land being held for railroad purposes could not be sold, we must take the fact to be established, that what was sold by the sheriff and bought by Keenan was no part of the railroad nor any indispensable appurtenant: for undoubtedly the corporation being established by law, and existing in legal contemplation for the public benefit, it can only be put out of existence or stripped of what is essential to its existence by public authority, and not by private suitors: Railroad Co. v. Caldwell, 3 Wright 337; Shamokin Co. v. Livermore, 11 Id. 465. And if the case before us presented an instance of a railroad company interrupted in the exercise of its corporate franchises by the levy and sale of a private creditor, we would restrain him, and if necessai’y would deny him the remedial provisions of the Act of 1836. . But such is not this case; without going outside of the record, as the argument did, to discover whether the company have any charter authority to build or enjoy a railroad upon the ground in question; assuming, as we do, that the company’s railroad was lawfully built, and has a right to be where it lies, the record shows that it was not bought by Keenan, is not claimed by him, and no possession of it is sought. What he purchased was the company’s title to the land, subject to the servitude of their right as a railroad company. So was the levy and sale, and such is the form in which Keenan must enjoy his purchase. In this state of the record, of what has the company to complain ? Not of deforcement from any premises that are essential to their corporate existence, for they are expressly saved. Not that land held by them beyond their corporate necessities was levied and sold, for corporations hold all such lands subject to the legal process of their creditors in the manner of other debtors. Not that the proceedings were had under the Act of 1836, for it expressly includes corporations, and the proceedings were in substantial accordance with its provisions. In a word, if the case be judged by the record, and we know of no other way of judging it, some of the questions suggested by the assignment of • errors [204] do not arise, and of nothing that was done has the company any just cause of complaint. As a consequence of holding the act of 1836 applicable to corporations, it may be that inconveniences may result to railroad companies; for possibly levies and. sales may be made of necessary appurtenances, arid the freeholders’ court may sfever them and deliver them to the purchasers. If there is danger of this, the legislature can remedy it by providing that the courts shall ascertain and fix the necessary curtilage of railroad companies, after the manner of the Mechanics’ Lien Law, before a preditor shall be permitted to make his levy. But whatever may be the theoretical danger to other cases, or the best remedy for it, no reason is perceived for reversing the proceedings in this case, and they are accordingly affirmed.