State v. Mexican Gulf Railway Co.

Bullard, J. Among the admissions of the parties in the record, is the following: “ The land on which the Rail Road has been made does not belong to the Company, none of the owners having been expropriated.” It is not, therefore, independently of the act of the legislature, susceptible of being mortgaged, and is not affected by judicial or legal mortgages. That act, we doubt not, rendered it susceptible of being mortgaged, and subjected it to a special conventional privilege, so far as the State is concerned, and for the purpose of securing the reimbursement of the loan ; but the Railway is not an immoveable, either by nature or destination, if the soil over which it is laid belongs to another. The rails, therefore, did not become immoveable by being laid down. It is also clear that future property can never be the subject of conventional mortgage. Civ. Code, art. 3276. To this it is replied by the Attorney General, that the mortgage results from the special law passed in this case. We do not so understand it. The act does not create the mortgage, nor could it without the [519] consent of the corporation. That consent is expressed in the acts of mortgage. The statute contains only the proposition to loan upon the execution of a lien, privilege, and mortgage upon all the property of the Company. As soon as that proposition is accepted the mortgage exists, and is essentially conventional. That the legislature did not intend to take a general mortgage upon all the property of the Company, present and future, real or moveable, appears also from the clause in the act which requires the appointment of appraisers of its property, who were to satisfy the Governor and the State Treasurer that the property and the bond of the Company are sufficient to secure the State. It was evidently not contemplated that the mortgage should embrace property to be acquired afterwards, because it could neither be appraised nor described, much less that it should defeat the vendor’s privilege on property afterwards acquired on credit, or judicial mortgages on lands or slaves which did not belong to the Company at the date of the act of mortgage. The application of these principles to the cases of,the different creditors who have made opposition, is not difficult. The slave Peter acquired from Phelps, and the lot of ground in the faubourg Franklin, are not mortgaged to the State, and are subject to the judgment of Millaudon, Albert, and the Orleans Insurance Company. De Lizardi & Co. claim the privilege of vendors on the iron rails laid down on the road, except for the first six miles ; and their right had been recognized, and they had actually seized under execution, when the State interfered by injunction, alleging a superior right under the statute, and the acts of mortgage and privilege. The rails not having been attached to an immoveable, were still, in our opinion, subject to the vendor’s lien, and the injunction obtained by the State ought not to be sustained. The same principles apply to the other privileged creditors; and we are of opinion, that the opposing creditors have a right to be paid in preference to the State. It is, therefore, ordered, that the judgment of the District Court be reversed ; that the opposing creditors be first paid out of the the property subject to their privileges; and that, to this extent, the injunctions of the opposing creditors be perpetuated. [520] Ip the cases of Claude Tournier v. Chauchon and another, William Prehn v. Etienne Rivolet and another, and Alphonse Regnier v. R. H. Hawthorn and, another, from the City Court of New Orleans ; of William F. Thompson, Syndic, v. Elizabeth Morris and Husband, Joseph Albert v. Artemon Hill and another, Thomas C. Magoffin v. Oliver Dubois and another, Laurent Millaudon v. Artemon Hill and another, William Frost and another y. Jacques Léon and others, Michael Maher v. Patrick Summers, John D. James v. How Hinds, Benjamin Florance v. Joseph A. Beard, and Benjamin Florance v. John Mitchell, from the Commercial Court of New Orleans ; of Neally and another, y. Wellington and another, Paul Liautaud v. Jean Jonau, and Thomas H. Gorman y. Seth W. Nye, from the District Court of the First District, the judgments of the lower courts were affirmed on appeal, in New Orleans, with damages, during the period embraced by this volume.