Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/827

 CHAP. XVII. ] LEGAL RELATIONS AMONG CREDITORS. [§ 820. the cars above mentioned in operating it. The court held that the contract between the railroad company and the car company was binding, and that the latter was entitled to the possession of the cars, and to compensation for their use by the receiver, payable out of the fund to the credit of the foreclosure suit. 1 § 819. A railroad company may give distinct mortgages covering separate portions of its road, and in such Mortgages i • i, ,i ,. of separate case one mortgagee has no rights over the portion portions of of the road covered by the other mortgage, and is KoiiLog" not even a necessary party to a suit to foreclose it. 2 stock - In regard to rolling stock, however, it may be different, and it has been held that in the absence of any specific apportion- ment between the several divisions of the road covered by separate mortgages, the terms of which are sufficiently broad to include rolling stock, such mortgages attach to all the roll- ing stock in the order of their priority. 3 § 820. Where, according to the terms of a railroad mort- gage, the company is to hold possession, of the road and received the earnings, until the mortgagees take possession, or the proper judicial authority interposes, such possession gives the company a right to the whole fund of the earnings and subjects them to its control. The earnings, con- sequently, remain as liable to the creditors of the company as if the mortgage did not exist. 4 Thus, a corporation mort- Conn. 454; Hand v. Savannah, etc., R. R. Co., 12 S. C. 314, 364; Hall v. Mobile, etc., Ry. Co., 58 Ala. 10. 1 Myer v. Car Company; 102 U. S. 1. 2 Bronson v. Railroad Co., 2 Black, 524. Compare Chicago, Danville, etc., Ry. Co. v. Lowenthall, 93 111. 433. 3 Minnesota Co. v. St. Paul Co., 6 Wall. 742. See § 676. Where a receiver in Kentucky is appointed under a mortgage includ- ing rolling stock, an Ohio couivt will enforce his claim on a part of such rolling stock, temporarily in Ohio, as against the attachment of an un- secured Kentucky creditor. Bank v. McLeod, 38 Ohio St. 174. 4 Gilman v. Illinois, etc., Tel. Co., 91 U. S. 603. Even though the mortgage cover income. Dow v. Memphis R. R. Co., 124 U. S. 652; Sage v. Memphis, etc., R. R. Co., 125 U. S. 361. A decree, silent as to the profits and possession of the road from the date of the decree until the sale thereby ordered, does not affect rights to such profits and possession during that period. lb. DeGraff v. Thompson, 24 Minn. 452. Compare One v. Peacock, 14 O. St. 187; Coe v. Columbus, etc., R. R. Co., 10 O. St. 372; Coe v. Knox County Bank, 10 O. St. 412; Contra, Dunham v. Isett, 15 Iowa, 284; Jes- sup v. Bridge, 11 Iowa, 572. 807