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Argument for Appellee.
Mr. A. H. Garland for appellees (Mr. A. H. Leonard was on the brief as of counsel for appellee Parker).
I. The equitable jurisdiction of the Federal courts attaches in Louisiana just as it does in other States, and causes in equity instituted in Louisiana in such courts must be determined by the rules and principles of equity.
It is the general rule of the common law that future property cannot be mortgaged, but the rule of the civil law is different. “ Those who bind themselves by any engagement whatever may, for the security of their performance of the engagement on their part, appropriate and mortgage not only the estate they are masters of at the time of contracting, but likewise all the estate which they shall be afterwards seized or possessed of.” 1 Domat, Cushing's ed. 649, Art. 5. With reference to the sale or mortgage of future property, equity has adopted the principles of the civil law. Mitchell v. Wins, low, 2 Story, 630; Willink v. Morris Canal Co., 3 Green Ch. (3 N. J. Eq.) 377; Pierce v. Emery, 32 N. H. 484. In Pennock v. Coe, 23 How. 117, this court held that a railroad company, authorized to borrow money and issue their bonds to enable themselves to finish and stock the road, may mortgage not only the then acquired property, but such as may be acquired in future. The law of Louisiana is in accord with the law of her sister States, and of all civilized countries, with regard to mortgages of future property by railroad companies. It is true that Article 3308, Civil Code, declares, “Future property can never be the subject of conventional mortgage,” but in Bell v. Chicago, St. Louis &c. Railroad, 34 La. Ann. 785, it was held that this article applies “ only to individuals in their ordinary transactions. It has no reference to juridical persons,” governed in this respect by other laws.
II. What meaning and what effect shall be given to the words of the mortgage? Are the lands granted by Congress to the New Orleans, Baton Rouge and Vicksburg Railroad Company covered by the mortgage given by that company to secure payment of its first mortgage construction bonds?
The question as to what property is covered by a mortgage
Argument for Appellee.
is purely one of construction, and depends entirely upon the language used and the obvious intention of the parties, to be gathered therefrom, and the authority under which it was issued.
Obviously in determining such a question very little assistance can be had from adjudged cases. Each case must necessarily be determined by its own peculiar circumstances; but it must be borne in mind that under the laws of Louisiana in a doubtful case, the agreement is interpreted against him who has contracted the obligation. Civil Code, Art. 1957, as amended by Act No. 87 of General Assembly, session of 1871, page 201, Art. 1957, which declares: "In a doubtful case the agreement is interpreted against him who has contracted the obligation."
From the facts and circumstances shown by the record, it is impossible to avoid the conclusion that when the incorporators applied for a charter, and when the legislature granted a charter to the railroad company, both the incorporators and the legislature expected the road and branches to be constructed with moneys derived exclusively from the sale of the bonds of the company; that the incorporators desired and intended the legislature should invest the company with power to mortgage its franchises and all its future property, without exception; that the legislature intended to invest the company with such power, and, in fine, that the main object of both the corporators and the legislature was to make the bonds of the company attractive to capitalists.
The company intended to mortgage and did mortgage all of its property within the State of Louisiana of every nature and description whatsoever and wherever situated, then owned, or which might thereafter be acquired, together with all its franchises, rights and privileges. A multitude of words was used ex industria to convey that intention simply because the draughtsman who framed the act of the legislature incorporating the company was not skilled in the use of words.
The words used in the mortgage were of course intended to mean something. In construing a contract some meaning must be given, when it can properly be done, to all words
Argument for Appellee.
found therein. The mortgagor intended to mortgage all property necessarily used for the operation of the line; all property which, though not necessary, was nevertheless used for its operation ; and all property appurtenant to the line or any of its branches.
The lands were granted by Congress to aid in the construction of the branch line. They were appurtenant to that line, and could not be diverted from it without fraud. “The words of a law – and of a contract — are generally to be understood in their usual signification, without attending so much to the niceties of grammatical rules as to the general and popular use of the words.” Civ. Code. La. Art. 14. This rule is common to all systems of jurisprudence. The word “appurtenant” is thus defined : Webster — Belonging to; Latin, appertinere ; from ad -- to - and pertinere — to belong to, to
— pertain to. Bouvier
Bouvier — Belonging to, pertaining to. These definitions undoubtedly give “the usual signification” of the word — the sense in which it is generally and popularly used.
When appurtenant was used by the legislature of Louisiana in the act of incorporation, and when that word was used in the mortgage, it was used in its usual, general and popular signification. In the civil law that word has no technical meaning. It may have in the common law, but the legislature of Louisiana and the mortgagors, citizens of Louisiana, authorizing and executing a mortgage in Louisiana to have effect only in Louisiana, did not use the word “appurtenant” in any sense in which it may be technical in the common law they used it to express its general signification in the "popular use" of the word. By the use of the words “appurtenant to the line” they meant to convey, and did convey, the idea that all property, real and personal, of whatever description and wheresoever situated, belonging to or pertaining to the, line, was to be subject to the mortgage given to secure the payment of the bonds.
Bouvier, after giving the technical meaning of “appurtenant” in the common law, says: “The thing appurtenant must be of an inferior nature to the thing to which it is appurtenant; thus a right of common may be appurtenant, as when
Argument for Appellee.
it is annexed to lands in other lordships.” Even in this sense the lands granted to aid in the construction of a railroad are appurtenant thereto, the road being the principal thing to which such lands pertain, to which they belong.
The real difference between the opposing parties in the case at bar is this. We say the mortgage in question expressly embraces all property of every kind and description whatsoever and wheresoever situated, then owned, or which might be acquired by the New Orleans, Baton Rouge and Vicksburg Railroad Company, appurtenant to its main line or any of its branches,
we say further that such mortgage was a mortgage of the whole road as a whole thing, with all its corporate franchises and rights, carrying with them all subsequently acquired property.
Our adversaries say the mortgage covers so far as after acquired property is concerned only such as is appurtenant to the operation of the line. This idea is always in the mind of our learned opponents. They persistently express it. Nearly all of the cases cited by them in their brief filed in court a qua show simply that property not connected with the operation of a road is not embraced within the terms of a mortgage granted on property used for operating a road. This and nothing more was decided in following cases cited on their brief. Walsh v. Barton, 24 Ohio St. 28; Farmers' Loan & Trust Co. v. Commercial Bank, 11 Wisconsin, 215; S. C. 15 Wisconsin, 424; S. C. 82 Am. Dec. 689; Seymour v. Canandaigua & Niagara Falls Railroad, 25 Barb. 284; Dinsmore v. Racine & Miss. Railroad, 12 Wisconsin, 725; Farmers' Loan & Trust Co. v. Cary, 13 Wisconsin, 110. These decisions are sound, but they decide nothing applicable to the case at bar.
A careful study of all the authorities bearing on this case confirms the opinion that the essential question in this case is one purely of interpretation and construction. It depends upon the language used and the intention of the parties, which must be gathered from the act of mortgage and the circumstances attending its execution.
The language used in the mortgage under consideration and the circumstances attending its execution show conclusively that the New Orleans, Baton Rouge and Vicksburg Railroad
Opinion of the Court.
Company intended to mortgage and did mortgage all its real estate then owned or which might thereafter be acquired of every kind and description whatsoever and wheresoever situated. The mortgage, then, by its terms, covers the lands granted by Congress to that company “in aid of the construction of the road.” Moreover, it is clear that said company by said mortgage mortgaged its road and all branches as a whole thing, together with all its corporate franchises and privileges. If so, future acquired property became subject to the mortgage as an accession to the thing mortgaged.
Under the general law of Louisiana, and under the charter granted to the New Orleans, Baton Rouge and Vicksburg Railroad Company that company was expressly authorized to mortgage its property, and also its corporate franchises, and it did mortgage all its property and also its corporate franchises. Such a mortgage is a mortgage of the corporation as an entirety. It includes all property owned by the corporation and all property subsequently acquired.
MR. Justice Brown delivered the opinion of the court.
(1) The motion of the plaintiff Parker, to dismiss the appeal as to him upon the ground that less than five thousand dollars is involved, demands our first consideration. His position is that the suit embraces two separate and distinct controversies: one between Parker and appellants, and one between Hamlin and appellants; that there were separate decrees in these several causes; that these decrees cannot be aggregated for the purpose of sustaining the jurisdiction of this court, nor can the appeal be sustained as to him by reason of the fact that, as to Hamlin, more than the requisite jurisdictional amount is at issue. It is true that the amount of Parker's decree was but twentyfour hundred dollars and interest, but his bill was filed not only for himself, but for all the other bondholders under the mortgage, and the cross-bill avers that he actually represented upwards of two hundred of the bonds issued under this mortgage, (an averment admitted by his demurrer,) and prayed for a decree declaring the invalidity of the entire mortgage as to these