Page:Federal Reporter, 1st Series, Volume 7.djvu/811

 HODDEB V. EBNTUCET es OBEAT KiSIBBN BT. 00. 739 �Rail way Company had the "power to looate, construot, e^nip^ and operate a iine of railway within tfae said commonwealtH of Kentucky from the cityof Newport, in Campbell county; state of Kentucky, upon, along, and near the southern bank of the Ohio river, in said state of Kentucky, to a point on the state Une between the state of Kentucky and West Vir- ginia, at or near Catlettsturg^ Boyd county, state of Ken- tucky ;" and in the granting clause ioonveys "the entire Iine et the Kentucky & Great Eastern Company's railroad extend- ing f rom the said oity of Newport, in the state of Kentucky, tQ said point in said state on the state Une between the states of Kentucky and West Virginia, as hereinbefore described, as the same is now or may hereafter be located and constructed, " etc. �Thus, it will be seen, this mortgage conveyed a definitely- described Une, wbich the company claimed to have then the right to build; hence, as a question of intention and con- struction, it cannot be that this Une — that east of Maysville, along and near the southern bank of the Ohio river — was intended to be, or was, conveyed as future to be acquired property. If, however, it had been intended to be conveyed as future-acquired property, it may be seriously doubted if it would have passed. The mortgaging of future-acquired property by railroad companies is sustained, either upon the ground that it is in the nature of accretions, or that the rail- road company has made an executory contract, which, though void inlaw,will inequitybe allowed to become effective when and as the property cornes into existence. Pennock v. Coe, 23 How. 124 ; Hokoyd v. Marshall, 9 Jurist, 215 ; Phillips v. Winslow, 18 Ben. Monroe, 431. �In the case at bar there could be no accretions, because the iine itself could not, at the date of the mortgage, be le- gally conveyed, or be owned, by the Kentucky & Great East- ern Bailroad Company; nor could this company make a valid executory contract about this part df the Une, It was beyond it^ corporate authority, and vitra vires. It may be seriously doubted whether a mortgage by a railroad company of future to be acquired property ever goes beyond the authority which ��� �