Briggs v. Chicago, Kansas & Western Railroad

The opinion of the court was delivered by Maktin, C. J. : I. The railroad company takes the position that James F. Briggs, as administrator of the [530] estate of Mrs. R. B. Fitch, deceased, could not acquire title to said lot, and therefore had no right to appeal. Authorities are cited upon the point that an executor or administrator cannot, either directly or indirectly, purchase the real estate of his decedent which he has been ordered by the probate court to sell. This is forbidden as well by public policy as the express terms of section 132 of the act respecting executors and administrators. (Oh. 37, Gen. Stat. 1889.) But this was land of the Aults, subject to a mortgage lien upon which it was the duty of the administrator to realize for the benefit of the estate, and no consideration of public policy forbade him from taking in the land toward the payment of the indebtedness, especially if it could not be sold for cash. Of course, the administrator is bound to account in the probate court to the heirs of Mrs. Fitch and the creditors of her estate for this land, to which he holds the title only in his representative capacity. The deed was valid, and passed the title to him. ( Valentine v. Belden, 20 Hun, 537, 541, 542; Lockman v. Reilly, 95 N. Y. 64, 71; Stevenson v. Polk, 71 Iowa, 279, 290, 291.) II. It seems a hard case when a railroad company is required to pay the value of improvements which it has placed upon a strip of ground occupied as a right of way, but it is a familiar principle that on a mortgage sale the title of the purchaser relates back to the execution of the mortgage, and cuts off intervening rights and equities acquired from the mortgagor by purchase ; and this is applicable to alllandowners alike. The decree of June 4, 1891, followed by the sheriff's deed executed in iDursuance thereof, divested the railroad company of its title, and "forever barred, foreclosed, enjoined ” and cut it off "from claiming any interest or estate in or to the real estate, [531] or any part thereof.” Unless, therefore, we may judicially declare that these buildings and structures were not and are not real estate, we must hold that they passed by the sheriff’s deed to the purchaser at his sale. Attention has been called to the fact that for the purposes of taxation such improvements are treated as personal property, but this applies as well to the lands occupied for right of way, depot grounds, and otherwise for the convenient and daily operation of the road. (Ch. 107, art. 7, Gen. Stat. 1889.) Whether railway property be treated as real or personal, however, for purposes of taxation, is a mere matter of convenience, and does not have the effect of transforming the one into the other. If the right of possession of a crowbar or a lifting-jack used by the railroad company should be in dispute, the proper form of action to settle it would be replevin; but if the right to occupy a strip of land for its road, or a lot for dei30t grounds, were in controversy, it would be necessary to resort to an action of ejectment for the determination of the question. These structures were real property. What right, if any; the company would have had prior to the foreclosure sale to remove them, or to obtain a condemnation without paying their value, is not involved in this case. (For some authorities on this subject, see Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kan. 158.) Before the company instituted its condemnation proceeding on November 20, 1890, it had been cut off and barred from claiming any interest in said lot 3, which included these structures; and the act of March 2, 1889, was in force, expressly prohibiting the removal of buildings from mortgaged premises without written permission. (Gen. Stat. 1889, ¶¶3900, 3901, 3902.) The judgment will therefore be reversed and the [532] cause remanded, with directions to allow the plaintiff the sum of $3,104 as an award of damages upon condemnation, to be paid within a short time, to be fixed by the court, together with costs. All the Justices concurring.