Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/695

 CHAP. XI.] CORPORATION AND CREDITORS. [§ 676. railroad company, which in terras covers " all the following, present, and future to be acquired property," mentioning engines, cars, and machinery, carries not only engines and cars that existed when the mortgage was made, but also such as subsequently take their place or are added by the time of the foreclosure. 1 Moreover, a railroad company owning the whole of a long railroad and all the rolling stock upon it, may assign particular portions of the rolling stock to particular divisions of the road, and mortgage such portions with such divisions respectively. Whether the company has mortgaged its rolling stock in this manner, is a question of intention. 2 11 Wall. 459; Thompson v. Valley R. R. Co., 132 U. S. 68; Phila., Wil. and Balto. R. R. Co. v. Woelpper, 64 Pa. St. 366. See Pierce v. Emery, 32 N. H. 484; compare Dinsmore v. Racine, etc., R. R. Co., 12 Wis. 649. See § 817. But see Henshaw v. Bank of Bellows Falls, 10 Gray (Mass.), 568; Howe v. Freeman, 14 Gray (Mass.), 566; Mississippi Val- ley Co. v. Chicago, etc., R. R. Co., 58 Miss. 896; Reed v. Ginsburg, 64 Oh. St. 11. Seems special author- ity is not necessary to enable a rail- road company to include in a mort- gage after-acquired property. City of Quincy v. Chicago, B. and Q. R. R. Co., 94 111. 537. iShawr. Bill, 95 U. S. 10; Ham- lin v. Jerrard, 72 Me. 62. It is held that mortgages of future acquired property are to be liberally construed. Little Rock, etc., R'y Co. v. Page, 35 Ark. 304. See State v. Northern Central Ry. Co., 18 Md. 193. " After-acquired clause " covers equitable rights and interests subse- quently acquired by or for the rail- road company. Wade v. Chicago, S., etc., R. R., 149 U. S. 327; Cen- tral Trust Co. v. Kneeland, 138 U. S. 414. Brady v. Johnson, 75 Md. 445. But the enumeration of cer- tain classes of " property " may exclude other "property" not men- tioned. Thus a railroad company mortgaged its then and after to be acquired " property, that is to say," and then described various species of property mortgaged. It was held that certain municipal bonds issued to aid in building the road, and not embraced in the enumeration of articles mortgaged, did not pass by the use of the general word "property." Smith v. McCullongh, 104 U. S. 25. See, also, Brainerd v. Peck, 34 Vt. 496; Alabama v. Monta- gue, 117 U. S. 602. Compare Wilson v. Boyce, 92 U. S. 320; Eldridge v. Smith, 34 Vt. 384. It has also been held that a rail- road corporation cannot include in a mortgage of future to be acquired property, land which, at the time of the mortgage, it had no authority to acquire. Meyer ». Johnston, 53 Ala. 237, 331. 2 Minnesota Co. v. St. Paul Co., 2 Wall. 609; S. C, 6 Wall. 742. A mortgage by a railroad company of " all present and future to be ac- quired property of the company, in- cluding the right of way and land occupied, and all rails and other materials used thereon or procured therefor," includes rolling stock. Pullan v. Cincinnati, etc., Air-Line R. R. Co., 4 Biss. 35. In Illinois, rolling stock is held to 675