Pierce v. Milwaukee & St. Paul R. R. Co.

Cole, J. By" its charter, the Milwaukee & Horicon Railway Company was expressly authorized to borrow money, and to make and execute in its corporate name all necessary writings, notes, bonds and other papers, and also to execute and deliver “such securities, in amount and kind,” as might be deemed .expedient to secure such loans. Sec. 21, chap. 450, Laws of 1852. It therefore had full power to make and deliver the mortgage to Lowry, bearing date April 1, 1856. By that instrument the company mortgaged all its road, from the junction thereof with the La Crosse road, in or near the village of Horicon, to a point in or near the village of Berlin, being about forty-two miles of road, “including the right of way and land occupied by said road, together with the superstructure and tracks thereon, and all rails and other materials used thereon, bridges, viaducts, culverts, fences, equipments, necessary depot grounds and buildings thereon,” belonging to the mortgagor, with the rolling stock and personal property appertaining to that line of road, then belonging to the company or thereafter to be acquired, “and all future right thereto and interest thereinto be acquired by the” corporation, together with the name and functions appertaining to the road, with its corporate rights and franchises. The mortgage then, in express terms, covered the franchises and property, real and personal, belonging to the company, April 1, 1856, and also all future acquired real and personal property for that portion of' its road; and this mortgage was executed by direct legislative authority conferred upon the corporation in its charter. In the mortgage, the company, among other things, covenanted “to execute and deliver any further reasonable and necessary conveyance or conveyances of the premises, or any part thereof, to the said party of the second part,” “for more fully carrying into effect” the trusts created, “particularly for the conveyance of any rights, interest or property subse [554] quently to the date hereof acquired by said parties of the first part, and comprehended, or intended so to be, in the description and terms of this instrument.” Now, it appears that the plaintiff and wife, in June, 1856, sold and conveyed to the Milwaukee & Horicon Railroad Company the premises mentioned in the pleadings, and upon which a vendor’s lien for the purchase-money is now sought to be enforced. It is difficult to see upon what principle the action can be maintained. It is apparent that the Lowry mortgage purported to include the right of way across the plaintiff’s land, which was the subject-matter of the conveyance from him to the company. It is true, the title to those premises was not in the company when the mortgage was executed.; but it is perfectly clear that it was the intention of the parties that the mortgage should become a lien upon any right or interest in real estate subsequently acquired for right of way, or necessary for the use of the road. It is insisted in the brief of the counsel for the plaintiff, that the instrument did not purport to mortgage future-acquired realty; but a bare reference to the clauses which have been cited will show that frliia view is inadmissible. It obviously purports to convey as well the real and personal property belonging to the company at the time of the execution of the mortgage, and therein described, as all real and personal property subsequently acquired for the use of the road. The language employed is not fairly susceptible of any other construction. And, this being so, it is very manifest that when the company subsequently acquired an interest in these premises, from that moment the mortgage became a lien and charge upon them. Farmers’ Loan & Trust Company v. Fisher et al., 17 Wis. 114, and cases cited in the opinion; also see Miller v. R. & W. R. R. Co., 36 Vt. 452. And there is a still stronger reason for holding in this case that any after-acquired interest in real estate for the use of the track would [555] iirure to the benefit of the mortgagee, and become vested in Mm, in view of the fact that the mortgage contains the covenant for farther assurance above quoted. Could it with any justice be claimed that the Milwaukee & Hori-con Railroad Company, after executing the mortgage with this covenant, might assert its title to the premises in question ? It seems to us not, but that the company would be clearly estopped from saying that the mortgage did not become a lien upon them. But this is not the only difficulty in the way of the plaintiff in enforcing a vendor’s lien upon the premises. The Lowry mort: gage has been foreclosed in an action to which the Milwaukee & Horicon Railroad Company was made a party defendant. A foreclosure sale was had of all the property, corporate rights and franchises embraced in the mortgage. It appears that Hunt and Sage purchased the property at the foreclosure sale, and have conveyed it, without notice of any equities of the plaintiff in the premises, to the defendant company. Now, we suppose the purchaser at the foreclosure sale obtained whatever interest the Milwaukee & Horicon Railway Company had in the premises, as well as the rights and interest of the mortgagee under the mortgage, whatever they were. Such was the necessary effect of the foreclosure. And that it would be a violation of all principle to permit the plaintiff, after the foreclosure sale and at tMs late day, to enforce a vendor’s lien for the consideration named in the deed given in June, 1856, really seems to us too plain for argument. We think the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint. ^By the Court. — So ordered.