Brockert v. Iowa Central Railway Co.

Kinne, J. I. We think it appears from the pleadings that the defendant herein acquired title to the property of the Iowa Central Railway Company prior to the date of the rendition of plaintiff’s judgment against the receiver. The sale appears to have been made long before the judgment was rendered, but the receiver’s accounts were not settled, and a formal order made releasing him, and turning over the property in his hands, until after the judgment had been rendered. 135 The order of the court made in pursuance of the sale in part reads as follows: “Forthwith deliver and turnover to the said Iowa Central Bailway Company the possession of the railways and premises and property, of every name and nature and description, real as well as persona], in his possession as receiver of the Iowa Central Railway Company, the defendant in this action.” The case then, under the facts presented, seems to us, in principle, to be like, and to be ruled by, the cases of Railroad Co. v. Verry, 48 Iowa, 458, and White v. Railroad Co., 52 Iowa, 97, 2 N. W. Rep. 1016. It was held in those cases that there was no lien under the statute until judgment was rendered; and if, prior to that time, the title to the property had passed to another company, there was nothing to which a lien could attach. That third parties were not bound to take notice of the pendency of the action, and could, before judgment, purchase the property of the defendant in the action, free from any lien. This defendant having taken title to the property of the Iowa Central Railway Company prior to the rendition of plaintiff’s judgment, the judgment never became a lien upon the property. It is insisted, however, that, while that may be true, that a court of equity should follow these funds above mentioned, and charge them with the payment of this judgment. If the funds in the hands of the receiver, after the recovery of plaintiff’s judgment, were available for the payment of the same, as they doubtless might have been under the orders of the court appointing the receiver, it was plaintiff’s duty to have made proper application to the federal court for the payment of his judgment. Having failed so to do, we do not think he can now be heard to say that he should have a decree inquiring defendant to pay him. When it took title to the property, it took the funds in the receiver’s hands, as well as the right to collect and appropriate what was 136 due him as receiver, as fully as it took title to the railway itself. True, its right to the funds in the receiver’s hands was subject to the right of the court appointing him to appropriate so much of the same as might be necessary in liquidation of the indebtedness of the receivership; but in all other respects, and as to all other persons, the title was absolute in the new company as to a claim, like pi aintiff ’ s, whi ch w as not r ed u ced to j udgment until after it took title to the property. The claim that the defendant agreed to pay this judgment was denied, and no evidence of such an agreement was adduced. We need not discuss the rules of law applicable to trust funds, as we do not think they apply to the case as made here. See Sloan v. Railway Co., 62 Iowa, 728, 16 N. W. Rep. 331; Jeffrey v. Moran, 101 U. S. 285; Wiggins Ferry Co. v. Ohio & M. Ry. Co., 12 Sup. Ct. Rep. 191. The decree below must be reversed.