Citation Numbers: 78 Tenn. 488
Judges: Cooper
Filed Date: 12/15/1882
Status: Precedential
Modified Date: 10/17/2022
delivered the opinion of the. court.
' The Nashville and Hillsboro Turnpike- Company was chartered by the act of 184.8, ch. 218, and under its provisions, built its road, erected its gates, and exercised its franchises. The road from Nashville to the line between the counties of Davidson and Williamson is 9J miles in length, and extends into the county of Williamson about 7J miles. Several creditors of the company, recovered judgments against it in Davidson county, and caused executions thereon to be levied upon the road-bed and chartered width of way, the toll-gates, toll-houses and lots, and franchises of the company in the county of Davidson. At the sale under these levies, made May 11, 1878, N. Baxter, Jr. became the purchaser, and took from the sheriff a deed conveying him the property. In like manner, several creditors of the company recovered judgments against it in Williamson county, and caused executions thereon to be levied on the road, gates, lots and franchises in that county, and at the -sale, made June 27, 1878, John' B. Murray became the purchaser, and received a sheriff’s deed. On August 21, 1878, N. Baxter, Jr., as the holder of several unsatisfied judgments against the company, filed the first of these bills against the company and John B. Murray to subject to the satisfaction of his judgments the equity of redemption of the company in the property • thus sold and bought.
On January 14, 1879, Joseph Saudek and wife, as judgment creditors of the Nashville and Hillsboro Turnpike Company, filed the second of these bills against the company, Baxter and Murray, to set aside the execution sales, and the sale of the equity of redemption, and to subject the property and franchises of the company to the satisfaction of all the debts of the company by a sale under the orders of the chancery court. The bill sought to impeach the good faith of the judgments of the defendants Baxter and Murray, and the proceedings thereon, upon the ground of collusion between them and the company. But of these charges, which were fully met by the answers, there was no proof. Upon final hearing, the chancellor was of opinion that the execution sales were void, that the company was insolvent at the date of the levy of the executions, and that the property and franchises of the company should be sold as an entirety for the benefit of the creditors equally.
The power of a court of chancery to impound the tolls of a corporation for the benefit of its creditors.
This conclusion renders it unnecessary to determine whether the defendants .Baxter and Murray acquired any. and what interest under their execution sales and purchases. It is very clear, however, that they acquired none of the franchises of the company. A franchise, being an incorporeal hereditament, could not, upon a settled principle of the common law, be seized under a fieri faeias and delivered to the purchaser: Freem. on Ex., sec. 179; Gue v. Tide Water Canal Company, 24 How., 263. It seems equally clear that the defendants acquired nothing by the levy and sale of the road-bed and right of way, for the want of any estate of the company in the land over which the road runs. This has been expressly held in the case of turnpike companies in States in which every kind of interest in land, legal and equitable, was subject to execution: Ammant v. Turnpike Co., 13 S. & R., 210; Wood v. Truckee Turnpike Co., 24 Cal., 474. The act of 1848 says nothing on the subject of the interest of the company in the land over which its road runs, but gives the company the benefit of the provisions of the act of 1838, ch. 241, incorporating another turnpike company. By section 7 of this latter act, '“the property in the said road when completed shall vest in the company and their successors for the purpose of a highway, which shall be free for all persons ■on the terms and conditions' herein prescribed.” This would seem only to confer a right of way for the exercise of the company’s franchise, and bring the case
The decrees in both cases will be affirmed, and the second case remanded for further proceedings. The complainant in the first suit will pay the costs thereof, and the defendants Baxter and Murray will pay the ■costs of this court in the second cause in the first instance, but the costs of both cises will be eventually paid out of the proceeds of the sale of the road.