The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-03-02
IMPORTANT LEGAL. OPINION
Rights of Bondbolders AGAINST Indictment Credi

Rights of Bondholders against Judgment Creditors
SUPREME CorGr.- GENERAL TmM.-SEcoNp DIS
TRIcr, NEW York. The Farmers Loan and Trust
Company and others rs. Bernards Hendrickson,
sheriff OF the county of Queens and others In this
case, the fall court decided, that the rolling stock
OF railroad is accessory to the real estate; that
railroad mortgages need not be filed AS chattcl
mortgages, and that bOndhollcrs under mortgage
not filed are entitled to the rolling stock, against
judgment creditors. The opinion of the Court was
delivered by Strong, F. j. The following is the
closing portion OF the opinion
The property OF railway company consists main
" of the road bed, the rails upon it, the depot cree
tions and the rolling stock, and the franchise to hold
and use them. The road bed the rails fastened to
it, and the buildings at the depots clearly real
property That the locomotives, and passenger,
baggage and freight cars part, and necessary
part of the entire establishment, there can be
doubt. Are they permanently and inseperably
connected with the more substantial reality to be-
come cOnstructively fixtures? Railways being a
modern invention and of novel character. we have
no decisions upon this question, and those relating
to and governing old and familiar subjects do not
absolutely control u.s. although we must necessarily
resort to them guides.
Judge Weston well remarks in Farrar u.s. Stack
pole, 6 Greenl. ISL, that modern times have been
fruitful of inventions and improvements for the
more secure and comfortable use of buildings, as
well as of many other things, which administer to
the enjoyment of life Venetian blinds, which ad
nit the air and exclude the sun, whenever it is de-
sirable so to do, of modern use so lightning
rods, which have now become common in this coun-
try and in Europe Those might be removed from
buildings without damage, yet, as suited and adapt
ed to the buildings upon which they are placed, and
incident thereto, they are doubtless part of the
inheritance, and would pass by deed as appertan-
ing thereto.
''The general principles oflaw must be applied to
new kinds of property, they spring into existence
in the progress of society, according their nature
and incidents, and the common sense of the commu-
nifty 1t may be that if an appeal should be made
to the common sense of the community, it would be
hafa pInQhf hot thof
applied to such movable carriages as railway cars
But such cars moveno more rapidly than do pigeons
from dove cote, or fish in pond; both of which
are annexed to thereality. Judge Cowen admits, in
alker vs.. Sherman, thata machine, movable in
itself, may become fixture, from being connected
In its operations by boards, or in any other way,
with the permanent machinery.
1t results from many that it is not absolute
ly necessary that things should be stationary in
one place or position in Order that they should be
technically deemed fixtures. The movable quality
OF those cars has frequently, if not generally, in
duced the opinion that they are personal property
Hence, railway mortgages of rolling stock have a:
understand, been generally filed in the Offices o.
the clerks of all the towns through which the road
pass. That was undoubtedly the more prudent
course as it saved any question the character
the property. Even the learned counsel for the
plaintiffs has gone no further than to denomnatt
the cars ''quasi" fixtures. Public opinion however
although respectable in matters of fact is unsafe
guide as to legal distinctions.
That railway cars are necessary part of the en-
tire establishment without which it would be mop
eratve and valueless, there can. of course, be NO
doubt. Their wheels fitted to the rails; they
are constantly upon the rails and except in OF
accidents or when taken OIL for repairs, nowhere
else; they not moved off the land belonging to
the company; they are peculiarly adapted to the
use of the railway and in fact cannot be applied to
any other purpose; they not like farming uten-
sils, and possibly the machinery in factories and
many of the movable appliances to stores and dwell
hngs, the objects of general trade they are perma
nently used on the particular road where they are
employed, and are seldom if ever changed to any
other.
Many of these strong characteristics of the
reality; some OF them have often been deemed con-
elusive. In Lushington Sewell, Il Sim. 435
4S0,) Vice-C Chancellor Hart was inclined to think
that the devise of West India (rea) estate passed
the stock OF slaves cattle and implements, because
such things are essential to render the estate pro
ductive, and denuded of them it would rather be a
burden than benefit. The reasons assigned appear
to be sound; but the Yice-C Chancellor carried the
doctrine further than the cases would warrant as
slaves, Tin the West lndies) cattle and implement:
OF husbandry were objects of general commerce. Ir
the case of the King agt The inhabitants of ST
Nicholas, Gloucester. 262, (cted by Judge Cowen
Goth Wendell, 269,) it decided that steel-vard
being in a machine house. was fixture
Lord Mansfield said: '.The principal purpose O
the house is for weighing. The steel-yard is Tho
most valuable part of the house. The house there
fore applied to this may be said so be built fol
the stee-yard and not the steelyard for the house
cars on a railway. The railway is constructed ex
expressly for the business to be done by the cars
and what evinces their essentially in strong point
Of view in this is, that there can be no tolls
which are expressy mortgaged without them.
1t is-remarked by Mr. Dane in his Abridgment
volume Sd, p $50 that certain articles were every
properly part of the real estate and inheritance
and pass with it, because not the mere fixing and
fastening to it is alone to be regarded but the use
nature and intention" Judge Weston, in the case
which have cited from 9th Greenleaf. in speaking
of saw mill, said, 'Hf you exclude" from the
reality ''such parts Of the machinery as NAV b,
detached without injury the other parts or to the
building, you leave it mutated and incomplete and
insufficient to perform its intended operations" y
Surely all this would be true of railroad for it i.
nothing without its locomotive vehicles.
1t Is true that no mechanical or agricultural bu
siness can be carried on to much extent, without
tools or farming implements and such tools and i'm
plements are universally conceded to be personal
property; but then such tools and implements are
not peculiarly adapted or confined to any particu
lar establishment but may be used upon them gener
ally, and subjects of frequent barter 1t is differ
ent, admit, as to the stationary machinery in 8
factory, and articles of similar character in {
dwelling house which not absolutely fastened
but although they are considered as personal prop
erty for reasons peculiar to them and not Of uni
versa application, yet, such reasons do not seem t.
me sufficient, while many things become fixtures
without physical annexation.
If railway cars were used in any other place thai
upon the lands belonging to the company or fo
ness, or were constructed in such shape and so ex
tensively to become objects of general trade, o
were not necessary part of the entire establish
ment, | might consider myself as compelled BY tn
weight of authority to decide, that they are no
physically annexed to what is usually demonstrate
real estate, they must be deemed personal property
but each and all of these characteristics or Incl
dents are wanting, the considerations which hav
mentioned, or to which have alluded leading to al
opposite conclusion, require to determine tina
they are included as fixtures or necessary incident
in a conveyance of real estate.
In thus deciding, we shall unquestionably carr
out the intention of the parties it could not hav
been the design of such parties-certany not of tn
mortgages, that the security should be diminishe
by the wear and tear of the machinery, and the in
evitable accidents to which it is subjected Posi-
bly, the substituted machinery might not be includ
ed in the mortgage, iii should be deemed persona
property, and few if any, would be willing to loa
their money upon such an uncertainty, but it woul
be otherwise if the additions should be considere
as made to the real estate.
Upon the whole, think that the plaintiffs ar
entitled to Judgment; and such Judgment should b
entered in conformity with the agreement contains
in the submission of the parties.