Where judgments were rendered against a railway company in
Wisconsin, and the assignee of the older one, in order to enforce
his lien, filed his bill against another company, who, under claim
of right, had obtained possession of the road,
Held:
1. That the junior judgment creditor was not a necessary party,
although, before the bill was filed, he had put on record in the
proper office the sheriff's deed conveying the road to him pursuant
to a sale under an execution sued out upon his judgment.
2. That he could not maintain ejectment against the purchasers,
under the decree directing the sale of the road to satisfy the
older judgment.
ERROR to the Circuit Court of the United States for the Eastern
District of Wisconsin.
This is an action of ejectment brought by Charles Howard against
the Milwaukee and St. Paul Railway Company, to recover certain
parcels of ground on which the defendant's railway and depots in
the City of Milwaukee are situate. The La Crosse and Milwaukee
Railroad Company constructed this end of its road in 185354, and
erected its passenger and freight depots and its warehouses and
road tracks in that city on the demanded premises. The latter have
been in use since 1856 for railway purposes. Howard claims title
under a deed executed June 13, 1862, by the sheriff to him as the
purchaser for $7,500, at a sale which took place Jan. 15, 1859,
under an execution sued out on a judgment for $25,586.78 against
the latter company, and in favor of Sebre Howard, which was
recovered and docketed in the Circuit Court of Milwaukee County,
May 1, 1858. The deed was recorded Nov. 20, 1863, in the office of
the register of deeds of that county.
The defendant also claims title under a judicial sale. A
judgment was rendered Oct. 7, 1857, for $111,727.21 in favor of
Newcomb Cleveland against the La Crosse and Milwaukee Railroad
Company by the District Court of the United States for the Eastern
District of Wisconsin. It was docketed on that day, and by several
mesne assignments transferred to Frederick P. James.
That company executed its mortgage, dated June 21, 1858, and
recorded July 8 of that year, to William Barnes, to secure
Page 101 U. S. 838
the bonds issued by it, amounting in the aggregate to
$2,000,000. A supplemental mortgage was executed to him by way of
further security. Default having been made, the mortgaged property,
including that now in controversy, was, with all the franchises,
rights, and privileges of the company, advertised for sale, and
sold to Barnes, May 21, 1859. He purchased the same for
$1,503,333.33, in trust for the bondholders, and they organized a
new corporation, under the name of the Milwaukee and Minnesota
Railroad Company, to which was transferred all the property and the
rights and franchises acquired by the sale.
There was, however, a mortgage prior in date to both the
judgments above mentioned. It was executed Aug. 17, 1857, by the La
Crosse and Milwaukee Railroad Company to Bronson and Soutter to
secure the payment of $1,000,000, and covered the entire road and
property of the company from Milwaukee to Portgage City. The
mortgagees filed, Dec. 9, 1859, their bill of foreclosure against
that company, the Milwaukee and Minnesota Railroad Company, the
plaintiff in this suit, said Sebre Howard, and others, defendants.
The court passed a decree for the sale of the property, providing,
however, that if the lastnamed company should pay into court a
certain sum of money for the complainants, possession should be
delivered to it of the eastern division of the La Crosse and
Milwaukee Railroad, being that portion of the road from Milwaukee
to Portage, upon said company executing a bond to pay such sums of
money as should come into the hands of the company to satisfy the
Howard and Chamberlain judgments, if they should be established as
liens upon the road. The company was let into possession of the
road, and retained it until March 6, 1867. No sale was ever had
under this decree.
James and other creditors of the La Crosse and Milwaukee
Railroad Company filed their bill in the Circuit Court of the
United States for the Eastern District of Wisconsin against that
company, and the Milwaukee and Minnesota Railroad Company, praying
that the sale to the latter company under the mortgage to Barnes be
set aside as fraudulent and void, &c. This Court, on appeal,
73 U. S. 6 Wall.
752, declared such sale to
Page 101 U. S. 839
be void, and pursuant to its mandate a decree was entered in the
lower court enjoining that company from setting up any right or
title to the property by virtue of its purchase under that
mortgage. Said James filed his bill, April 18, 1866, in the court
below against the Milwaukee and Minnesota Railroad Company to
enforce the lien, and have execution of the said judgment, whereof
he was the assignee, by a sale of the property, subject to certain
liens and judgments thereon. A decree was passed declaring that the
judgment was a lien upon the property, and fixing the amount due
thereon; that the La Crosse and Milwaukee Railroad Company had
ceased to exist as a corporation; and that the other company had
succeeded to its property, subject to all valid and subsisting
liens and encumbrances. The court further adjudged that all and
singular the railroad formerly known as the La Crosse and Milwaukee
Railroad, from Milwaukee to Portage City, its depots, station
houses, and buildings, together with all its rolling stock,
franchises, and appurtenances now in the possession of or claimed
by the Milwaukee and Minnesota Railroad Company, be sold at public
auction by the marshal of that district, unless prior to such sale
said defendant pay to said complainant, or his solicitor, or to
said marshal, the amount so as aforesaid adjudged due said
complainant, with interest and costs up to the time of such
payment; and that after such sale the company and all persons
claiming or to claim from or under it be for ever barred and
foreclosed of and from all equity of redemption and claim of, in,
and to said railroad, rolling stock, franchises, and appurtenances,
and every part and parcel thereof.
The sale was made subject to said prior liens and encumbrances
on the day prescribed by the decree, and was reported to and
confirmed by the court. The marshal thereupon executed a deed to
the defendant, purchaser at said sale. It has been ever since in
possession of the premises.
Said Charles Howard was not a party to the said proceedings and
decree.
There was verdict for the defendant, and judgment having been
rendered thereon, Howard sued out this writ of error.
The remaining facts are stated in the opinion of the Court.
Page 101 U. S. 840
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Possession of the lands in controversy was held by the
defendants at the time laid in the declaration, as the roadbed,
depot site, and other structures of their railroad, at the
described locality, and the plaintiff brought ejectment to recover
the premises, claiming title to the same by purchase at a sheriff's
sale by virtue of a seizure to satisfy a judgment recovered in the
name of Sebre Howard against the original company owning and
operating the railroad and under which both parties claim
title.
Sufficient appears to show that the company became indebted to
the judgment creditor in the sum of $25,000, and gave him its
promissory note for that amount. Payment being refused, he sued the
same, and on May 1, 1858, recovered judgment for the amount.
Execution in due form issued on the judgment, and the sheriff, by
virtue thereof, seized and sold the property to the plaintiff, Jan.
15, 1859, as appears by the deed given in evidence.
Such a deed, it is claimed by the plaintiff, is by the law of
the state made
prima facie evidence that the title of the
person against whom the judgment was rendered and by virtue of
which the sale and deed support to have been made in the lands and
real estate described in the deed, passed to and vested in the
grantee in such deed, and this without making other proof, either
of the judgment or sale, than that furnished by the deed. Laws Wis.
(1869) 39;
Ehle v. Brown, 31 Wis. 405, 412.
Title to the lands in controversy is also claimed by the
defendants through a purchase pursuant to a prior lien made by a
creditor of the company, under whom they claim, at a sheriff's sale
of a subsequent date, by virtue of an execution issued on a
judgment docketed Oct. 7, 1857, and the lawful deed of the sheriff
executed to the creditor in pursuance of such sale. Without
entering into details, suffice it to say that the judgment was
rendered against the company in that case for $111,727.71, together
with the costs of suit, and the evidence
Page 101 U. S. 841
exhibited in the transcript shows that the title of the judgment
in due form of law passed to the defendants by certain operative
mesne assignments.
Suppose the law of the state to be such as is contended by the
plaintiff, it is plain that it is as applicable to the purchase by
the creditor under whom the defendants claim as to that under which
plaintiff claims title.
Service was made, and the defendants appeared and filed an
answer denying each and every allegation in the complaint or
declaration. Preliminary matters being settled, the parties went to
trial, and the verdict and judgment were in favor of the
defendants. Exceptions were filed by the plaintiff, and he sued out
the present writ of error and removed the cause into this court for
reexamination.
Since the cause was entered here, the plaintiff has assigned
errors pursuant to the rule making that requirement:
1. Five of the assignments call in question the rulings of the
circuit court in admitting evidence offered by the defendants.
2. Then follows the sixth assignment of error, which calls in
question the ruling of the court that the title of the lands in
controversy is in the defendants, and that the verdict of the jury
should be in their favor.
3. Thirtythree requests for instruction were presented by the
plaintiff, and he calls in question the ruling of the court in
refusing each one of those requests.
When the plaintiff made the purchase under which he claims
title, there were subsisting liens upon the property prior in date
to the judgment for the satisfaction of which the sale was made,
to-wit, a mortgage dated Aug. 17, 1857, executed by the original
company to Bronson and Soutter to secure the payment of one million
dollars, and judgment in favor of Newcomb Cleveland, dated Oct. 7,
1857, for the amount before described, and which was docketed on
the day it was rendered.
Bonds to the amount of two millions of dollars were issued by
the company, and June 21st of the next year they executed a
mortgage upon its railroad and property to William Barnes as
trustee, to secure the payment of those securities, and on the 11th
of the next month they executed a supplemental mortgage
Page 101 U. S. 842
to the same party for the same purpose. Interest having fallen
due, which was not paid, the mortgage was foreclosed by
advertisement, and on the 21st of May of the next year all the
property, franchises, and rights of the mortgagor were sold under
the mortgage, and were bid off by the mortgagee in trust for the
bondholders. By virtue of that sale the bondholders and the
mortgagee became the owners of the property, franchises, and rights
of the mortgagor, and they united two days later in organizing a
corporation under the statutes of the state, which received the
name of the Milwaukee and Minnesota Railroad Company, to which they
transferred all the rights and interests they acquired by that
purchase.
Enough appears to show that the Bronson and Soutter mortgage
covered the line of the road from Milwaukee to Portage City, and it
appears that the mortgagees, Dec. 9, 1859, filed a bill in the
district court for the district to foreclose that mortgage, in
which they made both the old corporation and the new company,
together with Sebre Howard and the plaintiff in the present action,
parties defendants in the suit. Somewhat protracted litigation
followed, but it will be sufficient to say that it culminated in a
decree of sale, with an order that if the successor company should,
before sale, pay into court certain sums of money they should be
let into possession of the road, rolling stock, and other property
of the old company from Milwaukee to Portage City, subject to prior
liens. Pursuant to that order, the new company paid the specified
sums into court, and on the same day took possession of the
property, and managed and operated it from that time until the same
was sold to the defendants.
Other judgment creditors of the old company, including Frederick
P. James, on the 22d of April, 1863, filed a bill in the circuit
court against the successor company, joining the old company and
Selah Chamberlain as parties respondent in the suit. What the bill
prayed was that the sale to the new company might be decreed
fraudulent, and that the company should be enjoined from exercising
any control over the property and franchises mentioned in the
mortgage. Hearing was had, and the bill was dismissed in the
circuit court; but, on appeal to the Supreme Court, the decree of
the circuit court
Page 101 U. S. 843
was reversed, and the cause remanded for a decree in favor of
the complainants.
It appears from the mandate that it was decreed that the
foreclosure and sale of the mortgage be set aside and annulled as
fraudulent, and that the new company was perpetually enjoined from
setting up any right or title under it to the railroad and other
property sold under the mortgage, and that the mortgage remain only
as security for bonds issued under it in the hands of
bona
fide holders without notice. Besides that, an order of sale
was contained in the decree, but no sale of the railroad or
property was ever made under that decree.
James became the assignee of the judgment rendered Oct. 7, 1857,
in favor of Cleveland, and on the 18th of April, 1866, he, the
assignee, filed his bill in the circuit court against the successor
company to enforce the lien of that judgment, and to have the
property covered by the lien sold to pay the judgment debt. Among
other things, he set out the judgment, the mortgage, and the
organization of the new company, and alleged that the mortgage was
fraudulent, and that the new company was holding the property in
fraud of the creditors of the original company, and prayed that the
property might be sold to satisfy the judgment, subject to certain
prior liens and encumbrances.
Due process was served, and the respondent appeared and filed an
answer. Litigation followed, which resulted in a decree that there
was due to the complainant, as such assignee, $98,801.51, and that
the same was a lien and encumbrance as of the date of Oct. 7, 1857,
upon all the right, title, and interest which the original company
had in and to the property situated between Milwaukee and Portage
City. Provision was also made in the decree for the sale of all
that portion of the railroad, the same being then in the possession
of the successor company, and that that company and all persons
claiming under it be barred from all equity of redemption. Explicit
recitals were contained in the decree that the original company had
ceased to exist as a corporation, and that the new company had
succeeded to its property, subject to subsisting liens and
encumbrances.
On the 2d of March, 1867, pursuant to that decree a sale
Page 101 U. S. 844
was made of the property by the marshal to the defendants for
the sum specified in the transcript, and three days later the sale
was confirmed by the circuit court, when the defendants received
their deed of the premises, duly executed by the marshal. Demand of
possession was made by the purchasers on the following day, which
was duly surrendered by the occupants, and the defendants have
continued to operate the road to the present time.
Separate exception was taken to the introduction of each of the
documents offered by the defendants to prove the facts set forth in
the preceding statement, and those exceptions constitute the basis
of the first five assignments of error. Without entering into
details, suffice it to say in that regard that the court is of the
opinion that those assignments of error must be overruled, as it is
clear that the entire evidence to which they relate was admissible
either to show the title of the defendants, or to explain the
changes made in the name of the corporation, or the regularity of
the judgments, or the creation of the liens, or the transfers of
the titles, or regularity of the proceedings by which the title was
acquired or transmitted from one party to another.
Suppose that is so, still it is insisted by the plaintiff that
the circuit court erred in directing the jury to return a verdict
for the defendants, as specified in the sixth assignment of
error.
None of the facts were in dispute, nor was there any conflict of
testimony. Nothing of the kind is pretended, as all the material
facts were exhibited in the documents given in evidence, consisting
of judicial proceedings, mesne conveyances, judicial sales, and
written assignments or conveyances, leaving nothing as an issue of
fact to be determined by the jury.
Judges are forbidden to submit a question to the jury where
there is no evidence to sustain the theory of the party making the
request, nor are they any longer required to do so even when there
is some evidence to support the theory, unless the evidence is of
such a character that it would warrant the jury in finding a
verdict in favor of the party presenting the request.
Improvement Company v.
Munson, 14 Wall. 442,
81 U. S. 448;
Ryder v. Wombwell, Law Rep. 4 Ex. 32.
Both parties set up a lien as the foundation of their title,
Page 101 U. S. 845
and it is undeniable that the judgment upon which the defendants
rest their claim of title was rendered and docketed so as to become
a lien upon the premises in controversy more than six months
earlier than that which constitutes the basis of the title claimed
by the plaintiff. Nor can it benefit the plaintiff in this
litigation that he first took the necessary steps to enforce his
lien, unless he can show that by some means the prior lien of the
defendants has been displaced or has become inoperative, which is
not pretended. Priority of lien certainly gave priority of legal
right, just as in the case of a first and second mortgage. Either
may proceed in the case of mortgage, where the condition is broken,
to foreclose; but if the second mortgagee proceeds first, his
decree of foreclosure does not supersede or impair the rights of
the first mortgagee, nor did the proceedings of the plaintiff to
enforce the lien of his judgment have any effect whatever to
supersede or displace the prior lien under which the defendants
claim.
Concede that the judgment under which the defendants claim is
prior in time and legal effect, still it is suggested by the
plaintiff that it should have been enforced by seizure and sale
instead of by a proceeding in equity.
Pending that litigation the decree declaring the lien was
appealed to this court, and this court, Mr. Justice Nelson giving
the opinion, decided that judgments, by the law of the state, are
liens on real estate, and that the judgment, being the one now in
question, became a lien on the road from the time of its rendition,
and that a sale under a decree in chancery and a conveyance in
pursuance thereof, confirmed by the court, passed the whole of the
interest of the company, existing at the time of its rendition, to
the purchaser.
Railroad Company v.
James, 6 Wall. 750.
Weighed in view of that decision, it is clear that the
suggestion of the plaintiff cannot be adopted.
Failing in that, his next suggestion is that he is not bound by
the decree, inasmuch as he was not made a party to the suit which
resulted in the decree, to which several answers may be given:
1. That he was not a necessary party, even if within the
jurisdiction.
2. That he was not within the jurisdiction, and did not ask to
be made a party.
3. That the decree in the
Page 101 U. S. 846
case, being a decree in equity, did not supersede or displace
his lien.
4. That the decree left him still the right, as second
lienholder, to redeem, which he may still do if his right is not
lost by laches or lapse of time.
Much discussion of the mortgage to the trustee to secure the two
millions of bonds is unnecessary, as it was subsequent in date to
the judgment of the plaintiff. Nor is it necessary to add to what
has already been remarked in respect to the foreclosure of the
mortgage, as it left the judgment under which the sale to the
plaintiff was enforced wholly unaffected as to priority and as to
any rights accruing from priority. Evidence in that regard was not
material to aid the alleged title of the defendants in any respect,
except to show the origin of the new company and the transfer of
the property from the old company to its successor.
Regular proceedings to foreclose the one million mortgage was
also instituted; but there was no sale under that decree, the only
result affected by it being to vest in the new company the
possession of the railroad and its appurtenances. By paying the
amount ascertained as allowed by the court, the new company
acquired both the right of possession and the actual possession of
the mortgaged property, and to that extent at least it stepped into
the place of the old company as mortgagor, and became by the
decision of the court the owner of the equity of redemption.
Beyond doubt such was the
prima facie effect of the
proceeding, but the possession and interest acquired by the new
company were during all the time subordinate and subject to
subsisting prior liens and encumbrances, among which was the
judgment of the plaintiff as enforced by the prior sale. Prior
liens and encumbrances were not affected by that proceeding, nor is
it of much materiality in the present controversy, except to show
the relation which the new company bears to the railroad and
property in question.
Questions of various kind arise in the case, but the main
question throughout is who holds the paramount legal title to the
property which the plaintiff seeks to recover by his action of
ejectment, and in determining that question it is evident that the
controlling inquiry is who has the prior lien, as it is
Page 101 U. S. 847
clear that the sale of the property by one having only a
subsequent lien will not supersede or displace a prior lien held by
another; and it is equally clear that a sale in equity under a
prior lien will not impair any rights which belong to the holder of
the subsequent lien, if the latter duly asserts his rights in
proper season. Such propositions cannot be successfully
controverted; but the plaintiff contends that inasmuch as the new
company was enjoined from asserting any right or title to the
property on account of the fraudulent character of the proceeding,
and inasmuch as the plaintiff was not a party to the proceeding to
enforce the prior judgment against the old company, that the
defendants did not acquire any superior legal rights by the sale
under that decree.
Other suggestions of various kinds are made to show that the
sale under that decree is ineffectual to give effect to the lien
secured by the judgment, but the principal one is that the
plaintiff was not made a party to the proceeding, and has not had
his day in court, in opposition to the final decision which ordered
the sale. Mere equities are not involved in the controversy, but
the court is required to deal with the strict legal rights of the
parties.
Frequent reference is made in argument to the fact that the
proceeding for the foreclosure of the larger mortgage was
subsequently adjudged fraudulent, and to the injunction which
followed; but it is nevertheless true that the new company was duly
organized, and that its actual existence as a corporation has been
recognized in repeated instances by the courts in litigations of
great importance. It was recognized as such in the proceeding to
foreclose the smaller mortgage, and in the decree or order of the
court in letting the new company as such into the possession of the
railroad and its property, and throughout the period, exceeding
fourteen months, that its directors and agents possessed,
controlled, managed, and operated the railroad and all its fixtures
and appurtenances. Public acts of the kind cannot be overlooked,
and it was recognized in the proceeding to enforce the lien of the
judgment under which the defendants claim title, both by the
circuit court and the supreme court in three appeals here, as
evidenced by the reported decisions of this court.
Railroad
Companies v. Chamberlain,
Page 101 U. S. 848
6 Wall. 748;
Railroad Company v. James, id.,
73 U. S. 750;
James v. Railroad Company, id., 73 U. S. 752.
Judicial recognitions of the kind are repugnant to the theory of
the plaintiff, to which it may be added that it was the new company
that was in possession of the property when the proceeding was
commenced to enforce the lien of the judgment under which the
defendants claim title, and they were still in actual possession of
the same when the first decree was entered.
Complaint is made by the plaintiff that he was not made a party
to the proceeding, but the omission to make him a party did not
displace any lien he had upon the property, nor did it give him any
new or enlarged interest in the same. Coming to the question of
priority of legal title, the court must look at the judgments from
which the respective titles flow. In settling legal rights, the
court must give the party superiority whose lien was first acquired
and perfected by an appropriate proceeding.
By omitting to make the plaintiff a party to the equity
proceeding to enforce their lien, the defendants did not deprive
the plaintiff of any legal right, nor was he cut off from any
equitable rights which under the law had accrued to him in his
position as a subsequent judgment creditor. Had the plaintiff been
in possession of the premises when the decree was rendered and when
the sale was made, he could not have been dispossessed by any
process issued in the equity suit, the rule being that the writ of
assistance cannot go against a stranger in a suit for foreclosure,
and that the remedy of the party in such a case is ejectment.
Grant all that, and still it is suggested that the plaintiff
lost his right to redeem which he could have exercised if the sale
had been made at law, but it is not admitted that the suggestion as
to loss of remedy is well founded, as it is clear that he might
have had a remedy in equity after the sale as well as before.
Equity in such a case is a convenient remedy, and it is obvious
that the plaintiff could have filed his bill, and if there had been
no other difficulty than priority of lien the court of equity would
have granted him the right to redeem.
Subsequent encumbrancers, when not made parties to a bill for
foreclosure or sale, are not bound by the decree; nor is that
Page 101 U. S. 849
rule violated in the least degree when it is held that the title
of the defendants is paramount, as that consequence flows from the
fact that the lien of the judgment under which the defendants claim
is prior to that under which the plaintiff claims his title.
Whatever rights the plaintiff had prior to the sale in equity which
gives the defendants the paramount title, he still has, wholly
unimpeached by that sale or by any other cause, unless they are
barred by lapse of time or laches.
Process against the plaintiff under that decree could not affect
his rights, as he was not a party to the proceeding, consequently
the lien of his judgment still remained in full force. Even if the
plaintiff had been made a party to that proceeding, the only effect
would have been to cut off his equity of redemption, and as he was
not made a party, his equity of redemption is not extinguished.
Authorities are scarcely needed to support these propositions,
it being universally admitted that writs of assistance can only
issue against parties affected by the decree, which is only saying
that the execution cannot exceed the decree which it enforces, the
rule being that the owner of property mortgaged which is directed
to be sold can only be barred when he has had notice of the
proceedings for its sale, if he acquired his interest prior to
their institution.
Terrell v.
Allison, 21 Wall. 289,
88 U. S.
292.
Everybody admits the correctness of that rule; but it by no
means follows that the decree of sale in equity is void because a
second encumbrancer is not made a party to the proceeding, as it is
clear that his lien remains in full force notwithstanding the
decree of sale entered pursuant to such a proceeding.
Tested by these considerations, it follows that the sixth
assignment of error must be overruled.
Most of the material matters involved in the seventh assignment
of errors have already been sufficiently examined. Many of the
assignments of error under this number aimed to show that the
circuit court erred in refusing to adopt the theory of the
plaintiff, that certain portions of the premises in controversy
occupied by the defendants for railroad tracks or as sites for
their depot and other structures are not necessary for the purposes
suggested, or that the title to the same did not pass
Page 101 U. S. 850
to the defendants. Careful efforts to examine these matters to
the extent of the means exhibited in the transcript have been made,
and it must suffice to say in that regard that the court is unable
to perceive that it is shown that the circuit court erred
materially in any of those matters to the prejudice of the
plaintiff.
Remarks already made cover all the other grounds of complaint,
and are sufficient to show that there is no error in the
record.
Judgment affirmed.