[351] grantor conveyed this to the Company and its conveyed with it the right of way. The deed, in reciting the levy, states that it was made "on the following tract or lot of land, as the property of the said Railroad Company, to wit: the right of way," etc., and states that that was what was sold. It was not lawful for the purchasers to have a deed of the right of way, and if they obtained a deed of anything the right of way was included, or else they received nothing beyond, perhaps, a right to carry away from the land what the Company had put upon it. The bill of exceptions states that a like right of way through the lands of the proprietors of the soil was obtained by deed, in Lee County, from a point about two miles north of Opelika to the south line of Chambers County; and that under executions issued to Lee County on the same judgments, there were levies made on the right of way of the Company so far as the same had been obtained by it up the line of Chambers The right granted was merely a right of way County, and a sale by the sheriff of Lee County for a railroad. It was granted to an existing of what was so levied on, to the same persons corporation which had a franchise. The grant who bought at the sale in Chambers County. to the "assigns" of the Corporation cannot be But at the sale in Lee County a different purconstrued as extending to any assigns except chaser might have bought the right of way one who should be the assignee of its franchise and there would then have been a division of to establish and run a railroad. Nor did the the ownership of the line of the road created mention of rights, members and appurtenances as a unit and intended to remain such, resultbelonging and appertaining to the strip of land, or the use of the words "forever, in fee simple,' enlarge what was otherwise the limited charac- The policy of the State of Alabama on this ter of the grant. No fee in the land was con- subject is indicated by the provisions of her veyed, nor any estate which was capable of be- Constitution of 1865 (Art. 1, § 25), of 1867 ing sold on execution on a judgment at law, or (Art. 1, § 25) and of 1875 (Art. 1, § 24): separate from the franchise to make and own "That private property shall not be taken or and run a railroad. The Corporation could not applied for public use unless just compensahave made a voluntary conveyance of the right tion be made therefor; nor shall private propof way, severed from its franchise. What it erty be taken for private use or for the use of acquired is merely an easement in the land, to corporations other than municipal without enable it to discharge its function of making the consent of the owner; Provided, however, and maintaining a public highway, the fee of That laws may be made securing to persons or the soil remaining in the grantor. By the terms corporations the right of way over the lands of of the charter of the Lafayette Branch Company other persons or corporations; *** but just it was given the power to purchase, hold, lease, compensation shall in such cases be first made to sell and convey real, personal and mixed prop- the owner. In R. R. Co. v. Burkett, 42 Ala., erty, so far as should be necessary for the pur-83, it was held that under this provision a railposes mentioned in the Act, namely: to con-road company acquired no absolute title to land struct and operate the specific railroad author-in fee simple, but only a right to use for its ized therein, with power to "lay and collect purposes. Nor is a right of way such as may toll from all persons, property, merchandise or be thus secured, or such as was granted by other commodities transported thereon." By deed in the present case, within the meaning of the terms of its charter, therefore, in connec- the provision of the Code of Alabama, that exetion with the terms of the deeds of the right of cutions may be levied on real property in way, that right was indissolubly linked to the which the defendant "has a vested legal interfranchise, and to the purpose of the existence est, in possession, reversion or remainder, of the Corporation, and to its public functions, whether he has the entire estate or is entitled so long as they should exist. It would violate to it in common with others." Code of 1852, not only the expressed intention of the grantors § 2455; Code of 1867, § 2871; Code of 1876, in the deeds, but the manifest purpose of the 3209. Legislature of Alabama, to permit a private person to seize and appropriate the right of way by the purchase of anything at a judicial sale apart from the franchise on which the right of way was dependent. The sheriff's deed purported to convey, in words, "the said tract of land or railroad-bed, to wit: the right of the Opelika and Oxford Railroad, so far as the right of way has been obtained, from Lafayette to the edge of Lee County, and all the appurtenances belonging to said road from Lafayette to the line of Lee County." If the deed undertook to convey any land or soil or road-bed, it ing in a different control, with no franchise to ,"collect toll. No such thing could be done. We are not referred to any decision of the Supreme Court of Alabama made before the rights involved in this suit arose or before this suit was brought, determining the questions here involved. Two unreported cases are cited by the defendants in error-Tennessee & Coosa R. R. Co. v. East Ala. R. Co., decided at December Term, 1883; and Hooper v. Columbus & Western_Railway Co., decided at December Term, 1884. To these cases, if they were in point, the doctrine always held by this court, and so emphatically repeated in Burgess v. Seligman, 107 U. S. 20 (bk. 27, L. ed. 359], albe applicable, namely: that the courts of ed States, in the administration of we in cases between citizens of different -have an independent jurisdiction cowith, and not subordinate to, that of Courts, and are bound to exercise judgment as to the meaning and efthose laws"; and that when contracts actions have been entered into and have accrued thereon, in the absence of ative decision by the state courts, of the United States "properly right to adopt their own interpretaaw applicable to the case, although interpretation may be adopted by courts after such rights have ac the cases cited are not in point. In the railroad corporation having a franclaiming the legal title and ownerfts of way and of a line of railroad 2 being operated by the defendant, road corporation, brought eject recover the property. The defendant hada junior franchise and claimed hased the entire property sued for, emanating from the plaintiff. It at the plaintiff could recover. In case an individual having a legal p the land through which a railroad yad been permitted by him to conad was held to be entitled to recover ejectment, from the company, had failed to pay him for the right of decided in Gue v. Tidewater 24 How., 257 [65 U. S., bk. 16, L. that a corporate franchise to take tolls ould not be seized and sold under unless authorized by a statute of ch granted the Act of incorporaDeither the lands nor the works so the enjoyment of the franchise could ased from it and sold under such a an destroy or impair the value of the This decision was put on the ground franchise or right to take toll on boats h the canal would not pass to the under the execution on a judgment the corporation because it was real bereditament, and, upon the setof the common law, could not fieri facias; and was made in a ere the corporation owned in fee the al-houses, canal locks and wharf of which were necessary for the uses g of the canal. But, in the view we before stated, of the facts of this a necessary to discuss the general to the right to levy an execution at property owned by a railroad company tended for the plaintiffs that the deopped from denying that they fee of the property sued for, on that Richards, after the sheriff's sale, ced or turned over to the Visschers the ring and grading, as far as he at is, he exercised no further auover, and the Opelika and Oxford made to further claim to it; that the male the written contract with the we road Company to construct the su perstructure of the road, except as to the iron materials, for the twenty miles from, in, or two miles north of Opelika to a point beyond Lafayette, for a specified compensation; and that the contract provided that, on the completion of the twenty miles and the payment of the amount agreed, Visscher should transfer to the company "all right and title vested in him to all franchises, right of way or other property belonging to or pertaining to the said road under the old organization known as the Opelika and Oxford R. R." The bill of exceptions states that the defendant offered evidence tending to show that the East Alabama and Cincinnati Railroad Company was in possession of the property sued for from the time the Visschers ceased their work on it, as well as of the remainder of its line of railroad, till assignees in bankruptcy took possession of it, from whom it passed to purchasers of them, and then a receiver in the foreclosure suit took possession of it and held it till it was sold to the persons who conveyed it to the defendant. The Visschers appear not to have been in possession from the time they ceased work. They yielded possession, but not under any provision in the contract. As to the new work done by the Visschers they became merely creditors, out of possession, with such rights as the law gave them, but certainly with no right to eject the Compa- [3551 ny or its successors or grantees. They were to construct twenty miles of road for $14,750 per mile. When all was done and paid for they were to transfer what right they had to the road under the Opelika and Oxford organization. But they yielded up possession of that with the new work. As to what they obtained by the sheriff's sale and deed they acquired nothing thereby formerly belonging to the Opelika and Oxford Company, under the name of right of way, granted to or acquired by that company, which was capable of being conveyed by them; and as to anything else, their right did not lie in ejectment. Whether they were vendors or creditors in respect to what they so agreed to transfer, it is not necessary or proper to determine in this suit. There was nothing in what occurred between the parties or in the contract or in the transactions under it, which estopped the defendant from disposing the right of the plaintiffs to recover in ejectment on the strength of their title. It follows, from these views, that the Circuit Court erred in its first and third charges to the jury; and, as this conclusion goes to show that the plaintiffs had no title on which they could recover in ejectment, it becomes unnecessary to consider any of the other questions raised by the defendant. The judgment is reversed, and the case is remanded to the Circuit Court with a direction to grant a new trial. True copy. Test: James H. McKenney, Clerk, Sup.Court, U. 8. [247] [248] [248] D., a creditor of a bankrupt, holding two socurities therefor after being cited in a proceeding commenced against him by the assignee in bankruptcy, by petition, to obtain the delivery of the two securities, as being unlawfully in his possession, delivered up one of them to the assignee, in July, 1871. In November, 1872, the assignee sued D. to recover the other security, and in 1877 it was decided in that suit that D. was entitled to hold it. There being a deficiency on the debt, and the assignee having collected the security delivered to him, D., in 1879, sued the assignee to have its proceeds applied on the debt. Held, that the right of action accrued to D. in July, 1871, and was barred by the two years' limitation prescribed in section 2 of the bankruptcy Act of March 2, 1867 (14 Stat., 518), and section 5,057 of the Revised Statutes. them up to the assignee. After Doe had been so cited, the assignee demanded from him the delivery of the three notes and the three mort believing him to be entitled to the custody gages so substituted in April, 1870, and Doe, thereof, delivered the same to him." Before the assignee collected any moneys on them Doe appeared to the petition, and in July, 1871, filed an answer setting forth the indebtedness of the bank to him and how it was secured and the facts attending the substitution of securities before mentioned, and averring that he was entitled to the possession of those which he had so delivered to the assignee, and to the moneys collected or which might be collected on them. In November, 1872, the assignee filed a bill in equity, in the District Court, against Doe, to obtain a decree for the delivery up of the two remaining notes and mortgages, amounting to $10,000, on the ground that the bank had no right to transfer them to Doe. Doe answered the bill, setting forth the transactions between the bank and himself respecting the loan and the securities transferred for securing it, and particularly the facts attending such substitution of securities; and averring that the assignee had collected the money due on the securities so delivered to him, and that he, Doe, was en APPEAL from the Circuit Court of the Unit-titled to have them applied on the debt of the ed States for the District of California. Mr. W. W. Cope, for appellant. Mr. Justice Blatchford delivered the opin This is an appeal by Bartlett Doe, the plaintiff in a suit in equity brought in the District Court of the United States for the District of California, from a decree of the Circuit Court for that District affirming the decree of the District Court, dismissing the bill on demurrer. The defendant is Henry C. Hyde, assignee in bankruptcy of the City Bank of Savings, Loan and Discount, a California corporation, which was adjudicated a bankrupt by the District Court in December, 1870. The case made by the bill is this: In December, 1869, Doe lent to the bank $10,000, on its promissory note at two years, secured by the assignment of six promissory notes and six accompanying mortgages of real estate, made by other parties, amounting to $20,550. By an instrument executed by the parties at the time, it was agreed that the bank should be at liberty to substitute other securities of equal value with any of the assigned notes and mortgages, in their place, at any time before the maturing of the $10,000 note. In April, 1870, four of the six collateral notes and mortgages, amounting to $10,550, were, by consent, given up, and three other promissory notes and three like mortgages, made by other parties, amounting to $3,900, were substituted. In February, 1871, the assignee in bankruptcy presented to the District Court a petition alleging that Doe had unlawfully possessed himself of the five notes and five mortgages which he then held, amounting to $13,900, and praying that he be cited to show cause why he should not be ordered to deliver *Head note by Mr. Justice BLATCHFORD, 142 bank to him. In 1876 an interlocutory decree was made in that suit, to the effect that the assignee was entitled only to the surplus which should remain after applying the two notes and the two mortgages to the payment of the $10,000 note, of December, 1869, and that an accounting should be had as to the amounts severally due on that note and on those securities. The accounting was had, and on January 29, 1877, the District Court decreed that on January 1, 1877, there was a balance due to Doe of $7,096.82, after applying the securities retained by him. The assignee appealed to the Circuit Court, but the appeal was dismissed for want of prosecution, before July 2, 1877. The amount of the deficiency remains due to Doe. The assignee collected the three notes and three mortgages which Doe delivered to him, collecting on one, June 19, 1872, $1,301.07; on another, May 19, 1875, $500; and on the third, June 19, 1872, $293.80, the assignee giving the debtor an acquittance of the remainder. After the decree was rendered in the equity suit begun in November, 1872, and after the appeal therefrom was dismissed, and after Doe had ascertained it would be necessary to resort to the three notes and three mortgages he had deliv ered to the assignee, for the payment of the amount due to him from the bank, he demanded from the assignee the delivery of those securities or the payment of the moneys thereby secured, which the assignee refused. The bill in the present suit was filed February 25, 1879. Its prayer is for a decree that Doe is the beneficial owner of the securities which he delivered to the assignee, and of the moneys represented by them, and is entitled to have them applied on the indebtedness of the bank to him, and that the assignee pay over the proceeds, with interest, to Doe. The demurrer sets forth various causes of demurrer, and, among them, that eight years had elapsed, before the bill was filed, after Doe delivered to the assignee the securities in question, and that mat of action to recover them or their was barred by § 2 of the Bankruptcy March 2, 1867 (14 Stat. at L., 518), and the Revised Statutes of the UnitThe limitation referred to is that sor in equity shall in any case be by or against an assignee in bankby or against any person claiming interest touching any property or perty, of the bankrupt, transferaested in the assignee, in any court -less the same be brought within the time the cause of action aczainst the assignee. of the appellant is that the resorting to the securities which d to the assignee was not deterthe decree of the District Court, asamount of the deficiency, became sal of the appeal to the Cirthat the cause of action did not at time, which was within two the fling of this bill. It does not ar when the appeal was taken dismissed, except that those red between January 29, 1877, and Bat this is unimportant, because clear, on the averments of the bill, was barred. Speeding instituted in the District Lee, in February, 1871, the d that Doe had unlawfully posof all the collateral notes and Te of each, which he then held, for an order that he deliver all of to the assinee. The bill in this suit after Doe had been cited to appear the assignee applied to him for, he delivery to him, as assignee, es and three mortgages in quesDe,"believing him to be entitled ady thereof, delivered the same to het bill alleges that the answer of poon was filed before the assignee the moneys on those securities, assignee obtained the securities directly from Doe, under an assertion of title; and, if Doe desired to make available the claim set up in regard to them in July, 1871, in his answer to the petition, it became then his duty to procure a judicial decision of the matter, the assignee having accomplished the object of his proceeding. But the litigation dropped, and was not renewed, respecting those securities. The allegation of Doe, in his answer to the bill filed by the assignee in November, 1872, in regard to the securities retained by Doe, that Doe was entitled to have the assignee apply on the I debt to Doe the securities which Doe had delivered to the assignee, amounted to nothing, because such a claim could not be litigated in that suit. It was not a set-off or counterclaim to any relief sought by the assignee in that suit. The cause of action in regard to the securities delivered to the assignee by Doe accrued to Doe at the time of such delivery. It did not depend upon or arise from the existence or ascertainment of any deficiency of the other securities to meet the debt. If Doe was entitled at all to have the securities which were delivered to the assignee applied to his debt, he was, on the showing of the bill, as much entitled to have them so applied as to have the other securities so applied, and as much entitled to their possession for that purpose as to the possession of the other securities. His right of action to that effect accrued, therefore, when the assignee came into the possession of the securities, on their delivery to him by Doe. Decree affirmed. (See S. C., Reporter's ed., 244-247.) of notes. d that that answer was filed Mortgages—foreclosure—plaintiff not the owner s were delivered by Doe. Nothizzed to have been done on the The three notes and the three mortthe whole number, though ered all, having been delivered be allowed the matter to rest November, 1872, when he ysuit in respect only of the mortgages which had not tom. The averment of the a that, on a demand by the the delivery to him of the - al-'arte mortgages, Doe delivered Ita averred that the delivd by any expressed qualifi *In a suit to foreclose a mortgage on land in Louisiana, given to secure the payment of negotiable promissory notes to their holder, it was held, on the notes as against the mortgagor or those holding facts, that the plaintiff was never the owner of the the land under him by deeds in which they assumed the payment of the notes and mortgage. [No. 936.] Submitted Jan. 6, 1885. Decided Apr. 13, 1885. APPEAL from the Circuit Court of the United States for the Eastern District of Louisiana. The history and facts of the case appear in the opinion of the court. Messrs. J. D. Rouse and Wm. Grant, for appellants. Mr. R. H. Marr, for appellees. [252] [244] Mr. Justice Blatchford delivered the opin- [245] ion of the court: any agreement or arrangezade between the parties. the claim which the asthe petition, that the secu In the possession of Doe, Doe had been cited to appear The satement in the bill that e to be entitled to the →rnes, delivered them to him, Louisiana, against Spencer Field, Sr., Spencer municated motives which Field, Jr., and Frederick T. Field. The bill deliver the securities. The| cement of what Doe now remem This is a suit in equity, brought by Daniel Weaver in April, 1881, in the Circuit Court of the United States for the Eastern District of •Head note by Mr. Justice BLATCHFORD. [246] Without reference to the ground stated b the Circuit Court as that on which it dismisse the bill, we are of opinion that the dismissal w proper. The matters of fact averred in the a swer, as above set forth, are established by th evidence. It is shown that Weaver never a quired any title to the notes as owner or holder of them as security for any indebtedne from Field, Sr., to him; and that he receive them from Field, Sr., as agent, to raise or a vance money on, for or to Field, Sr., and failed do so, and retained them tortiously and witho the assent of Field, Sr. When Weaver first, February, 1878, took legal proceedings to e force the mortgage, Field, Sr., in the petiti in the suit he brought against Weaver in Marc 1878, more than three years before Weaver die to restrain Weaver's proceedings, denied th Weaver held or owned the notes, and allege in substance, the same facts set up in the a swer in the present suit. We have careful considered the argument on the facts made the part of the appellants, but do not deem extended opinion upon them necessary. T property in the hands of the 'grantees w bound only to the extent it was bound in t hands of the mortgagor, and only to respo to a lawful holder of the notes. prays that the defendants be decreed in solido | for the defendants. The bill was dismissed b There was a replication, and proofs were taken, Field, Sr., and Williams being witnesses Decree affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. FRANCES DODGE ET AL., Appts., 0. THOMAS KNOWLES. (See S. C., Reporter's ed., 430-436.) Husband and wife—what sufficient to bind se rate estate of wife for provisions. *Neither the liability for provisions supplied a dwelling-house where a husband and wife and th children are living together, nor a promissory no NOTE.-Married women-separate property of how charged. To create a charge against the separate proper of a married woman it is not sufficient that credi given on the faith of it. The wife must contr with relation to it. Manhattan B. & M. Co. Thompson, 58 N. Y., 80; Hudson v. Davis, 43 In 258; West v. Laraway, 28 Mich., 464. house with her consent, upon her husband's That repairs were made upon a married woma quest, is not necessarily sufficient to charge her, her promise to pay may be inferred by the ju from the facts. Bickford v. Dane, 58 N. H., 185. Krouskop v. Shontz, 51 Wis., 204; Lovell v. W Compare also Morse v. Mason, 103 Mass., 5 iams, 125 Mass., 439; Speck v. Gurnee, 25 Hun, Allen v. Graham, 12 Phila., 176; Lee v. Winston, Ala., 402; Sargeant v. French, 54 Vt., 884. *Head note by Mr. Justice GRAY. |