864
. FEDERAL REPORTER, vol. 48.
the rolling stock on the railroad in good working order,etc·. /Tbe im.. provement company occupies the same position as the owner who stands by in silence while another sells his property· .It is conceded that the intervener, the Hiawassee Company, stands in the shoes of the North Georgia Improvement Company I so far as ·the rolling stock is concerned, and can assert no better title thereto. thll.n the improvement company could have asserted had no transfer been made. These views require the .reversal ofthe decree appealed from, and the remanding of the ease to the circuit court, with instructions to dismiss . the intervention of the Hiawassee Company, with costs. And it is so ordered.
CENTRAL .
TRUST
Co. OF NEW YORK 11. MARIETTA (GRoOME, Intervener.)
"
G. Ry.Co., . '1' .
(Circuit Court
at Appeals, Fifth
Circuit.
December 7,1891.) OF VENDOR.
t.
FORBOLOBt1Ril: 01l' RAiLROAD MORT.GAGE-CONDITIONAL
Tbevl'lndor of rolling BtQck to an improv\lmentpompany. by of sal!! reserved title thereto until paymento,f the purchase money.. The' iniprovement company supplied the rolling'stock to a railroad company in 9rder.to enable the latter to raise money onbo.n4s Beduredbymortgage ,on and equipments. HeW, in a suit to foreclOse such mortgage, that the ori'ginalvendor, having no notice of equities existing ·between thCpurchascrs ofthellolids of the l'ail;road companyand company, WII.lI entitled to thepo$SeBSio!l of stock, .title to whlCh be had retained. . .., . . '.. . But in BuclI.case, tbe Improvement co:r;npll.1ly being estOPPIlU ·froma.ettil:jg,llIl titJ.ll thll bondbolders by tbe fact that .the b.onds of theraUroal1 company were placed through its instrumentality, the original vendor could take nothing by a 1'6sale to him :by the improv:ement company of such rolling Btook. ,.: .
'9.8AME-EsTOPPEL. ..
. from' tha CirCUit Court oLthe.United District of Georgia. ,: . .. ., .· Bill in equity; by the Central Trust CQmpany of New York agairist;the Marietta & NOl'th Georgia Railway COlDpany to ,foreclose a mortgag{;l made by the railroad company. Samuel W. Groome claim.ing title to certain. rolling stock in the possession of therec<liver appointed in the suit. Decree for intervener. Plaintiff appeals. Reversed. H. B.Tompkina, for appellant. Hoke Smith, for appellee. Before PARDEE, Circuit Judge, and LOCKE and BRUC£, District Judges. PARDEE, J. The case on this intervention is the same in pleadings, master's report, exceptions, and assignments of errors as the case of Central Trust Co. v. Marietta & N. G. Ry. CO. (Hiawa88ee Co., Intervener,) 48 Fed. Rep. 850, (just decided,) except that the appellee, Groome, was the original vendor of the rolling stock in question to the North Georgia Improvement, Company, and in his contract retained the title until pay-
CENTRAL TRUST CO. OF NEW YORK fl. MARIETTA & N. G. RY. 00.
865
ment of the purchase price should be fully made, and that the North Georgia Improvement Company has not paid the entire purchase price, some $5,500 of the original $22,500 being still due and unpaid; and the appellee, Groome, shows a written contract for the resale of the property to him by the North Georgia Improvement Company, made since his first intervention claiming the rolling stock in controversy was filed. The case is, however, to be distinguished from the Hiawassee Case in this: that Groome was not charged with any notice of the equities existing in favor of bondholders as, against Eag,er ,or the North Georgia Improvement Company, and he made a conditional sale of his property, ,t4e title thereto to the North Georgia Improvement Company, who transferred it, without paying the full price, to the Marietta & North GeorgiltRailway Company. We think it is clear that the appellee, Groome, has never forfeited his rights under his original contract, and that he is now entitled to a return of the property, or to the payment of the balance of the price still due. We do not think that Groome took anything by the contract with the North Georgia Improvement Company' for the resale of the property, as that company (as we have seen in, the Hww(UJ8ee G'aBe) was estopped from setting up title against the bondhold': ers. ' As the master reported that the use of the rolling stock in question was neCElssary to the operation of the railway in possession of the receiver, the receiver should pay the balance of the purchase price still On the other points involved, due to appellee, or give up we will hold as in the Hiawa&ee case. It is therefore ordered and adjudged that the decision appealed from be reversed, with costs, and that' with instructions to enter an this cause be remanded to the order receiver to pay, within 15 days from date thereof, the balance due to intervener, Samuel W. Groome, on his' contract for the sale to the North Georgia Improvement Company ofihe rolling stock described in, his· intervention; and, in case of inability to pay as directe,d, ,the receiver shall, deliver the property.
.Co. OF NEW YORK 1.1. MARIETTA & N. G. Ry. Co., (JACKSON & WOODIN MANUF'G Co., Intervener.)
(C1Ircuit Court of Appea'lB,Fijth Circuit. December 7, 1891.)
1.
ll'ORBOL08UREOJ! RAILROAD }{ORTGAGB-CONDITIOIUL
A railroad company issued eqUipment bonds, and executed a mortgage to secure the same" covering" all after-acquired" pr0.\lerty of the compauy. Afterwards an improvement company, interested in tbe railway company, purcbased certain rolling stock from a company, whicb, by the contract of sale, l'etained title to the rolling stock untiltbe purchase price thereof should be fUlly paid. The rolling stock was then fumished by the improvement company to the railroad company, under an agreement· by which the improvement company undertook to eqUip the railroad company. HeUl, in a suit to foreclose the mortgage,that the ear-building company, having no notice of any equities in favor of the holders "f the railroad company's bonds against the imprpvement company, arising out of the eontract of the improvement company to eqUip railroad ill order to enable Uta
OJ! VENDOR.
v.48F.no.11-56
