By an act of the Legislature of Alabama, the state loaned its
credit to the Alabama & Chattanooga Railroad Company upon
condition that the company should first give to the state "a first
mortgage upon the lands granted by the United States to said
railroad company" and a first mortgage
"on the telegraph line and telegraph offices along the line of
said road belonging to said company; also on the machine shops and
all outer property in the state and in Georgia, Tennessee and
Mississippi belonging to said company; also on all coal mines now
opened or hereafter to be opened and worked, belonging to said
company; also upon all iron or other mineral lands, and all iron
manufacturing establishments now in operation and hereafter to be
constructed."
The company made a mortgage to the state in which the words of
description were identical with the language of the statute. In a
suit in equity brought to foreclose the mortgage as covering some
town lots in Tennessee not granted by the United states to the
company and not coming within either of the specified classes,
Held:
Page 117 U. S. 603
(1) That the words of description in the mortgage did not cover
the lots.
(2) That the words "all other property" were intended to cover
property of the company in and about the telegraph offices, machine
shops, coal mines, iron mines and manufacturing establishments
about which a doubt might otherwise arise whether it was part of
those classes of property.
Wilson v. Royce, 92 U. S. 320,
distinguished.
This was a bill in equity to foreclose a mortgage alleged to
have been made by the Alabama and Chattanooga Railroad Company to
the State of Alabama on certain town lots in Chattanooga. The case
is stated in the opinion of the Court. For the purpose of
understanding the points made in argument, it is sufficient to say
that the act of the Legislature of Alabama, authorizing the loan of
the credit of the state to the company contained the following
provision:
"That the governor of the said state shall only issue said bonds
upon receiving in exchange therefor an equal amount of first
mortgage bonds of said railroad company, bearing the same rate of
interest as the above-mentioned state bonds and secured by first
mortgage upon the lands granted by the United states to said
railroad company and upon any interest which said company now has
or may hereafter lawfully acquire in or to said lands, with this
reservation, . . ."
"Provided further that the governor shall require said railroad
company, before issuing to said company said bonds, to give the
State of Alabama a first mortgage on the telegraph line and
telegraph offices along the line of said road belonging to said
company; also on the machine shops and all other property in the
state and in Georgia, Tennessee, and Mississippi belonging to said
company; also on all coal mines now opened or hereafter to be
opened and worked belonging to said company; also upon all iron or
other mineral lands and all iron manufacturing establishments now
in operation and hereafter to be constructed."
The company executed the required mortgage with words of
description identical with those in the mortgage. It was not
claimed in the bill that the premises in controversy were embraced
in either class of property specially named, but they were shown to
have been acquired by deed subsequent to the mortgage in execution
of a contract for sale made prior to it.
Page 117 U. S. 604
Decree below for respondent on the ground that the statute of
limitations was a bar, from which complainants appealed.
Page 117 U. S. 605
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from the Circuit Court of the United States
for the Eastern district of Tennessee. The suit was originally
brought in the Chancery Court of Hamilton County, from which it was
removed into the court first mentioned. It was a bill to foreclose
a mortgage on twenty-two acres of land in that county which is
described with particularity by metes and bounds in the bill and is
there alleged to have been purchased of J. P. McMillin by the
Alabama and Chattanooga Railroad Company, the mortgagor, on the
25th day of March, 1869. No such description of the land is found
in the mortgage
Page 117 U. S. 606
which is the foundation of this suit, and if it is covered by
that mortgage, it is by a phrase which, it must be supposed, was
intended to cover it by a general reference to all other property
of the mortgagor in the State of Tennessee, rather than by any
specification of this property. The defendants deny that by any
fair or just construction of the mortgage it can be held to include
the twenty-two acres in question.
There are other grounds of defense set up, on one of which the
decree against plaintiffs was rendered -- namely that the suit was
barred by the statute of limitations. But if the defendants are
right in the assertion that the land was not conveyed by the
mortgage deed, all other questions are immaterial.
It appears that the Legislature of the State of Alabama
authorized the governor of the state to issue to the Alabama and
Chattanooga Railroad Company its bonds to the amount of two
millions of dollars. The statute, however, required the governor,
before he delivered these bonds, to demand of the company its own
bonds of an equal amount, secured by a mortgage on certain property
mentioned in the statute. The mortgage was made and the bonds
issued to the state in exchange for bonds of the state delivered to
the company. As the language descriptive of the property to be
mortgaged, as found in the statute, is found identically in the
reciting part of the mortgage and in its granting clause, and as
this question is to be decided by a construction of that language,
it will be given here
verbatim from the mortgage deed:
"
Exhibit C to original bill"
"This instrument of mortgage, made this second day of March, in
the year eighteen hundred and seventy by and between the Alabama
and Chattanooga Railroad Company, a corporation of the States of
Alabama, Georgia, Mississippi, and Tennessee, the party of the
first part, and the State of Alabama, the party of the second part,
witnesseth that whereas said State of Alabama, by an act
entitled"
"An act to loan the credit of the State of Alabama to the
Alabama and Chattanooga Railroad Company for the purpose of
expediting the
Page 117 U. S. 607
construction of the railroad of said company within the State of
Alabama,"
"and approved February 11, 1870, has granted certain aid to said
corporation, and has in and by said act required the governor of
said state to issue bonds of said state to an amount not exceeding
two millions of dollars in favor of said company, bearing interest
at a rate not ___ eight percent per annum, which said interest
shall be payable semiannually in currency or coin, and the bonds
shall be payable at the expiration of not less than fifteen nor
more than thirty years upon the terms and conditions in said act
set forth, and whereas said act further provides that the governor
of the state shall only issue said bonds upon receiving in exchange
therefor an equal amount of first mortgage bonds of said railroad
company bearing the same rate of interest as the above-mentioned
state bonds, and secured by a first mortgage upon the lands granted
by the United States to said railroad company, and upon any
interest which said company now has or may hereafter lawfully
acquire in or to said lands, with this reservation: that the said
Alabama and Chattanooga Railroad Company shall have the privilege
and right of selling said lands, or any part thereof, in accordance
with the act of congress granting the same, provided however that
the proceeds of said sale shall be appropriated to the payment of
the aforesaid first mortgage bonds of the said railroad company
issued to the state; provided further that the governor shall
require said railroad company, before issuing to said company said
bonds, to give the State of Alabama a first mortgage on the
telegraph line and telegraph offices along the line of said road
belonging to said company; also on the machine shops and other
property in the state and in Georgia, Tennessee, and Mississippi
belonging to said company; also on all coal mines now open or
hereafter to be opened and worked belonging to said company; also
upon all iron or other mineral lands and all iron manufacturing
establishments now in operation, or hereafter to be constructed;
and whereas said Alabama and Chattanooga Railroad Company, in order
to obtain said state aid, proposes to issue to said state bonds of
said corporation, secured as is by said act required, and
entitled
Page 117 U. S. 608
'First Mortgage Land Bonds of the Alabama and Chattanooga
Railroad Company,'"
"Now therefore the said Alabama and Chattanooga Railroad
Company, in compliance with the terms and conditions of said act
and for the purpose of obtaining the aid thereby granted to this
corporation and in order to secure the punctual payment of all said
first mortgage land bonds of this corporation, does hereby grant,
bargain, sell, enfeoff, release, assign, and convey unto the State
of Alabama and its successors and assigns forever all lands granted
by the United States to and for the benefit of this company and all
the right, title, interest, and estate which said company now has
or may hereafter lawfully acquire on or to said lands, subject to
this reservation to said company, as by said act provided: that
said company shall have the privilege and right of selling said
lands or any part thereof in accordance with the act of congress
granting the same and entitled 'An act to renew certain grants of
land to the State of Alabama,' and approved April 10, 1869,
provided however that the proceeds of said sales shall be
appropriated to the payment of the first mortgage land bonds of
said company to be issued to the State of Alabama, as aforesaid;
also the telegraph line and telegraph offices along the line of
said road and belonging to said company; also the machine shops and
all other property in said States of Alabama, Georgia, Tennessee,
and Mississippi belonging to said company; also all coal mines now
open or hereafter to be opened and worked belonging to said
company, and all iron or other mineral lands, and all iron
manufacturing establishments now in operation and hereafter to be
constructed, saving and excepting only from said granted premises
such and so much of the same as said company may have heretofore
conveyed in mortgage in or by either or both of two indentures of
mortgage, both made on December 19, 1868, and covering the railroad
and certain other property of said company, for a more specific
description whereof reference is hereby made to said two
indentures, the same having been recorded in the counties where
said road is located."
It is to be observed that the land sued for is nowhere
spoken
Page 117 U. S. 609
of in this record otherwise than as land, pure and simple, nor
is there any claim that it was land granted by congress.
Now the mortgage deed describes
ex industria the
several species of lands which it conveys. The first of them, by
far the most important, is
"all lands granted by the United States to and for the benefit
of this company, and all right, title, interest, or estate which
said company now has or may hereafter lawfully acquire in or to
said lands."
If the company had intended to grant
all its lands
within the States of Alabama, Georgia, Tennessee, and Mississippi,
and it must have had other lands in these states, why not have said
so, instead of saying "all the lands granted by the United States?"
It was therefore only this class of lands which was conveyed by
this first clause of the deed. After some reservation of the right
of the mortgaging company to sell these lands and appropriate the
proceeds to payment of the bonds secured by the deed, the granting
language proceeds:
"Also the telegraph line and telegraph offices along the line of
said road and belonging to said company; also the machine shops and
all other property in said States of Alabama, Georgia, Tennessee,
and Mississippi belonging to said company; also all coal mines now
open or hereafter to be opened and worked belonging to said
company, and all iron or other mineral lands, and all iron
manufacturing establishments now in operation and hereafter to be
constructed."
While the company is thus specific in its description of the
subjects of the mortgage, enumerating with great particularity its
land grant from congress, its telegraph lines and offices, its
machine shops, and its coal mines, it is quite unreasonable to
suppose that the company would have been thus needlessly minute in
its description of the property conveyed, enumerating with great
particularity the four or five classes of property, mostly real
estate, which were intended to pass, if it had also intended that
the three words "all other property" should stand for everything in
the four states which the company owned, and especially all its
lands.
These words, which are found neither in the beginning of the
granting clause as a general phrase to be afterwards emphasized by
a more minute description nor at the end, as a
Page 117 U. S. 610
summary of what had preceded them, have their appropriate use in
the precise place where they are found. We say they are there
appropriate because, in conveying the telegraph offices, the
machine shops, the coal mines, the iron mines, and the
manufacturing establishments, there might in them be found much
property belonging to the company about which a doubt would arise
whether it was a part of these offices, mines, machine shops, and
manufacturing establishments. All such doubt or ambiguity is
removed by declaring that all the property of the grantors in these
places, or used in any of these pursuits, is conveyed. For this
purpose, the phrase "all other property" is apt, and is used in the
right place in a description designedly minute and elaborate. It is
among its kind
ejusdem generis, and its purpose is
answered when its use is limited to explain the other words in this
immediate connection.
It is not to be denied that, in a writing descriptive of
property to be transferred or assigned the more general words,
which include all that is intended to be conveyed, are not to be
frittered away by an attempt at a description of each particular
thing fairly included in the more general language. But in such
case, it must be apparent that the intent was to include all that
could be embraced within the more general terms. If, for instance,
the description of the property mortgaged had commenced by saying
"all the property of the grantor, real, personal, and mixed, in the
states of Alabama, Georgia, Mississippi, and Tennessee," and had
then attempted to enumerate this property, but had omitted some of
it, this omitted part would have passed, as in
Spindle v.
Shreve, 111 U. S. 544.
So where the instrument professes "to convey all my property," or
"all my estate," or "all my lands wherever situated," in all these
cases, referred to in
Wilson v. Boyce, 92 U.
S. 325, there were no words to qualify the generality of
this description.
In fact, there were no other words of description, and their
full effect must be given to them. This latter case is relied on by
appellant's counsel as conclusive in the one now under
consideration. In that case, the bonds issued to certain railroad
companies were declared to be a "first lien upon the
Page 117 U. S. 611
road and property of the several companies so receiving them,"
and this was held to cover the lands owned by said companies. It is
obvious here the two words "
road and property" of those
companies were used as representing all the property they owned.
Nothing further in the way of description was needed, or was
desirable. But this form of words differs widely from the elaborate
description of what is conveyed in the deed of the mortgaging
company here, and the meaning also is as different. In the latter
case, the road, its bed, its rolling stock, and much other property
probably was
not conveyed, and no expression is found
implying that all its lands were conveyed, and if we limit the
words "
all other property" to what we have supposed to be
their meaning, there is nothing else to imply that the company
intended to mortgage all its property of every kind and
description, whether real or personal.
We do not believe this was intended or can be fairly implied
from the language used, the minute descriptive character of which
is found three times in this contract -- namely in the statute
authorizing the transaction, in the preliminary recital of the
mortgage deed, and in its granting clause -- all of which is
useless if the phrase "all other property," as there used, was
intended to include all lands, and all interest in lands, in the
four states through which the road passed.
The decree of the circuit court is
Affirmed.