US SUPREME COURT DECISIONS

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 chanrobles.com-redchanrobles.com-red

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 chanrobles.com-redchanrobles.com-red

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. chanrobles.com-redchanrobles.com-red

Page 101 U. S. 840