Wehrman v. Conklin, 155 U.S. 314 (1894)

courts of equity of that State by providing that “ an action to determine and quiet title to real property may be brought by any one having or p. 315claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession,” such enlarged jurisdiction, if sought to be enforced in a Federal court, sitting within the State, can only be exercised subject to the constitutional provision entitling parties to a trial by jury, and to the provision in Rev. Stat., § 723, prohibiting suits in equity where a plain, complete and adequate remedy may be had at law.

The bill further alleged that on January 14, 1861, a copartnership known as Greeley, Gale & Co. began an action at law, aided by an attachment in the District Court of O’Brien County, upon a judgment rendered by the Circuit Court of Pierce County in the State of Wisconsin, against Adolph Wehrman, which judgment was based upon notes given prior to the date of the conveyance of said lands to the defendant by Adolph Wehrman. Such judgment was rendered after personal service upon Adolph Wehrman in the State of Wisconsin. A writ of attachment was issued by the clerk of the District Court of O’Brien County, and levied upon the lands in question, and notice personally served upon the defendant in the State of Wisconsin, although no service of summons or notice appears to have been had in the State of Iowa. At the time the writ of attachment was issued there was no time fixed by law for holding the term of the District Court in O’Brien County, though subsequently the judge appointed a term to be held on the 3d day of June, 1861, to which day the writ of attachment was actually made returnable. The venue of the cause having been changed to the county of p. 317Woodbury, on September 17, 1861, a judgment was rendered by the District Court of that county against the defendant Wehrman for $1809.40 damages and costs, and the lands “ described in the writ of attachment ” were ordered to be sold in satisfaction thereof. A certified copy of this judgment was filed in the District Court of O’Brien County.

That he subsequently acquired a tax title to such lands for the taxes of 1858 and 1859, and that said lands by conveyances from Greeley in 1881,1882, and 1884, became the property of Conklin, who took immediate possession and has since been j© p. 318full, open, notorious, and adverse possession of the same. That the plaintiffs and their grantors paid all the taxes upon such lands for thirty years, and have made valuable improvements by putting some six hundred acres under cultivation, by the erection of substantial buildings and fences, digging wells and otherwise improving the premises. That such improvements have been made at an expense of $1000 and in full reliance upon their title being good and valid. That in the meantime defendant has never asserted any right or title to the premises, or notified plaintiff of his interest in the same. That Wehrman never asserted any claim to the premises, until the land became valuable by reason of the plaintiffs’ expenditures; had never paid any taxes upon the property, and, though having actual knowledge of the proceedings taken by Greeley, Gale & Co. to subject the land to the payment of their judgment, for more than twenty-seven years took no steps to have the records corrected, or asserted any claim, or notified purchasers of such claim, until his action at law was commenced.

Defendant interposed a demurrer to the bill for the want of jurisdiction and of equity, which was overruled; and he thereupon answered setting up certain defects in the proceedings under which Greeley, Gale & Co. sold the land upon execution, and by virtue of which proceedings plaintiffs claimed to have acquired a title, viz.: (1) that the writ of attachment was not attested by the seal of the court in which the action was brought; (2) that no service of summons or notice was had upon the defendant Adolph Wehrman in the State of Iowa; (3) that such notice as was given described the action as having been brought upon a judgment rendered May 12, 1860, when in fact the judgment was rendered September 12, 1860, and judgment was taken upon the attachment proceedings upon a judgment so rendered September 12, 1860; p. 319(4) that the writ of attachment was made returnable at a term commencing on June 3, 1861, when in fact the commencement of that term was not fixed until more than a month after the writ was issued; (5) that a change of venue was ordered from O’Brien County to Woodbury County, and the papers sent there without having been in any manner certified or verified by the seal of the court in which the suit was brought; (6) that the judgment was in personam, and ordered the property “ described in the writ of attachment ” to be sold to satisfy the same, when in fact no property was described in the writ, but only in the return of the officer endorsed thereon; (7) that in the subsequent equity suit to subject the lands to the payment of this judgment, there was no personal service or notice of process upon the appellant, Frederick Wehrman, in the State of Wisconsin; (8) that the tax deed was defective, inasmuch as the taxes on the lands for 1858 and 1859 were payable by law to the treasurer of Woodbury County, whereas the tax deed shows that the treasurer of O’Brien County attempted to sell the lands for taxes and give a tax deed.

Wehrman brought his action at law, to recover possession of the lands in controversy. He claims by a strictly legal title. Conklin claims by a strictly legal title. Appellant was entitled to a trial by jury to determine the validity of his title p. 320and that of Conklin. Equity has no jurisdiction to deprive him of this right. Lewis v. Cocks, 23 Wall. 466; Fussell v. Gregg, 113 IT. S. 550; Killian n . Ebbinghaus, 110 IT. S. 568 ; Kipp v. Babin, 19 How. 271; Grand Chute v. Wi/negar, 15 Wall. 373; Whitehead n . Shattuck, 138 U. S. 146.

It is also settled law that the equitable jurisdiction of Federal courts can be neither enlarged nor diminished by state legislation. Such was the decision of this court in a case cited supra, where the statutes of Iowa authorized a suit in equity on a legal title against a party in the possession of real estate. Whitehead v. Shattuck, 138 IT. S. 146. See also Mississippi Mills v. Cohn, 150 IT. S. 202; Payne v. Hook, 7 Wall. 425; McConahy Wright, 121 IT. S. 205; Scott v. Neel/y, 140 IT. S. p. 321106; Gates n . Allen, 149 U. S. 451; Swan Land <& Cattle Co. v. Frank, 148 U. S. 612.

The general principles of equity jurisprudence, as administered both in this country and in England, permit a bill to quiet title to be filed only by a party in possession against a vol . clv —21 p. 322defendant, who has been ineffectually seeking to establish a legal title by repeated actions of ejectment, and as a prerequisite to such bill it was necessary that the title of the plaintiff should have been established by at least one successful trial at law. Pomeroy’s Equity Jurisprudence, sections 253, 1394, and 1396. At common law a party might by successive fictitious demises bring as many actions of ejectment as he chose, and a bill to quiet title was only permitted for the purpose of preventing the party in possession being annoyed by repeated and vexatious actions. The jurisdiction was in fact only another exercise of the familiar power of a court of equity to prevent a multiplicity of suits by bills of peace. A statement of the underlying principles of such bills is found in the opinion of this court in Holland v. Challen, 110 U. S. 15, 19, in which it is said: “ To entitle the plaintiff to relief in such cases the concurrence of three particulars was essential: He must have been in possession of the property; he must have been disturbed in its possession by repeated actions at law; and he must have established his right by successive judgments in his favor. Upon these facts appearing, the court would interpose and grant a perpetual injunction to quiet the possession of the plaintiff against any further litigation from the same source. It was only in this way that adequate relief could be afforded against vexatious litigation and the irreparable mischief which it entailed.”

The statute of Iowa, upon which this bill is based, is an example of this legislation, and provides (sec. 3273) that “ an p. 323action to determine and quiet title to real property may be brought by any one having, or claiming an interest therein, whether in or out of possession of the same, against any person claiming title thereto, though not in possession.”

The question of enforcing these state statutes was first p. 324considered in Clark v. Smith, 13 Pet. 195, in which a bill was filed by a party in possession to compel the defendant to release a pretended title to certain lands claimed by him under patents from the State of Kentucky. The conveyance asked by the bill was sought to be in conformity with the provisions of an act of the assembly of Kentucky giving jurisdiction to courts of equity in such cases. It was held that the legislature “ having created a right, and having at the same time prescribed the remedy to enforce it, if the remedy prescribed is consistent with the ordinary modes of procedure on the chancery side of the Federal courts, no reason exists why it should not be pursued in the same form as in the state courts. On the contrary, propriety and convenience suggest that the practice should not materially differ, where titles to land are the subjects of investigation.” This case was cited and approved in Parker v. Overman, 18 How. 137, where a proceeding under a statute of Arkansas, prescribing a special remedy for the confirmation of sales of land by a sheriff, was held to be enforceable in the Federal courts. In Holland v. Challen, 110 IT. S. 15, the principle of this case was extended to one of wild land, of which neither plaintiff nor defendant was in possession. Plaintiff claimed under a tax title, and the property was described in the bill as unoccupied, wild, and uncultivated land. The question was elaborately examined, and the jurisdiction sustained upon the ground that an enlargement of equitable rights by state statutes may be administered in the Federal courts as well as in the courts of the State, citing Clark v. Smith, and the case of Brodericks Will, 21 Wall. 503, 520. The case was treated as one where the plaintiff had no remedy at law against the defendant, who claimed an adverse interest in the prefnises. In delivering’the opinion, however, it was intimated, page 25, that if a suit were brought in the Federal court under the Nebraska statute, against a party in possession, “there would be force in the objection that a legal controversy was withdrawn from a court of law ; but that is not this case, nor is it of such case we are speaking.” Another step in the same direction was taken in Reynolds v. Crawfordsville Bank, 112 p. 325U. S. 405, in which a bill was sustained upon an equitable title, although it would appear from the report of the case that such title was not fortified by an actual possession; and in Chapman v. Brewer, 114 U. S. 158, a similar suit was upheld under a statute of Michigan permitting bills to quiet title to be filed by any person in possession.

The real question, then, to be determined in this case is, whether the plaintiffs have an adequate remedy at law. If they have, then section 723 is controlling, and, notwithstanding a local practice under the code, where no discrimination is made between actions at law and in equity, may authorize such suit, the Federal courts will not entertain the bill, but will remit the parties to their remedy at law. The bill under consideration alleges the plaintiffs to be the “ absolute owners” of the premises, and then sets forth certain proceedings by which it is alleged they became such; but it is claimed and substantially admitted in the bill that, by reason of certain p. 326irregularities in these proceedings, it is doubtful whether the legal title ever became vested in the plaintiffs. The bill then sets up the long possession of the plaintiffs and their grantors, large outlays by them in improvements upon the land, the practical adandonment of the same by the defendant, all of which, it is claimed, constitute an estoppel in pais. Plaintiffs also rely upon the laches of Wehrman in bringing the action in ejectment, and allege a failure to bring his suit within the period prescribed by the statute of limitations. It is entirely clear that, if no action in ejectment had been begun at law, the long-continued adverse possession of the plaintiffs, and the equitable title set up in the bill, would have been a sufficient basis for the maintenance of the suit; and it is not easy to see why the commencement of such action should place them in a worse position than they were in before or oust them of their remedy in equity.

It is scarcely necessary to say that complainants cannot avail themselves as a matter of law of the laches of the plaintiff in the ejectment suit. Though a good defence in equity, laches is no defence at law. If the plaintiff at law has brought his action within the period fixed by the statute of limitations, no court can deprive him of his right to proceed. If the statute limits him to twenty years, and he brings his action after the lapse of nineteen years and eleven months, he is as much entitled as matter of law to maintain it, as though he had brought it the day after his cause of action accrued, though such delay may properly be considered by the jury in p. 327connection with other facts tending to show an estoppel. As was said by Chancellor Green in Homer v. Jobs, 2 Beasley, (13 N. J. Eq.,) 19, 23 : “Nor can the staleness of the claim, or the lapse of time, or the statute of limitations, avail the complainant. The defendant is asking no relief at the hands of this court. He was seeking to enforce his legal rights in a court of law. The complainant is here asking the aid of this court. It is the claim of the complainant, not the title of the defendant, to which the equitable defence of a stale claim is applicable. No lapse of time can avail the complainant, unless it be a part of the defendant’s title under the statute of limitations. This defence will avail the defendant at law as well as in equity, and constitutes no ground for enjoining proceedings at law.” Had Wehrman seen fit to resort to a court of equity in assertion of his rights, undoubtedly the defendants to such suit might have interposed the defence of laches, but it is quite a different question whether it could be made the basis of a bill. It may, however, be considered as one of the facts of the case tending to show an estoppel.

But even if it be assumed that the facts relied upon as constituting an equitable estoppel in this case might be laid before p. 328a jury in a common law action, and if established operate as a defence, yet it does not necessarily follow that a bill in equity will not also lie to cancel the outstanding deed from Adolph to Frederick Wehrman as fraudulent, or at least as unavailable under the peculiar circumstances of the case. There is a class of cases which hold that where there is actual fraud no remedy at law is complete and adequate, except that which removes the fraudulent title. As early as 1750, it was held by Lord Chancellor Hardwicke, in Bennet v. Musgrove, 2 Ves. Sen. 51, that a bill would lie by an execution creditor to set aside a fraudulent conveyance, whether he could recover at law or not. Objection having been made to the bill upon the ground that the remedy at law was complete, the Lord Chancellor observed: “But be it as it may, whether he could recover or not, he is entitled to come into this court; the distinction in this court being, where a subsequent purchaser for valuable consideration would recover the estate, and set aside or get the better of a precedent voluntary conveyance, if that conveyance was fairly made without actual fraud, the court will say, take your remedy at law; but wherever the conveyance is attended with actual fraud, though they might go to law by ejectment, and recover the possession, they may come into this court to set aside that conveyance; which is a distinction between actual and presumed fraud from its being merely a conveyance.” This is still the law in England. Blenkinsopp v. Blenkinsopp, 1 De G., M. & G. 495. The leading case in the Federal courts upon this point is Bean v. Smith, 2 Mason, 252, in which Mr. Justice Story held that, notwithstanding the restrictive clause of the judiciary act, Rev. Stat. § 723, a judgment creditor might file a bill in equity against his debtor to set aside a fraudulent conveyance, since there is not, in the proper sense of the term, a plain, adequate, and complete remedy at law.

While, in view of our decisions in Insuramce Company v. Bailey, 13 Wall. 616, and Buzard v. Houston, 119 U. S. 347, there may be a doubt whether this remedy is available in personal actions, the law is well settled that where title to real property is concerned, equity has a concurrent jurisdiction, p. 329because it may not only enjoin an action at law, but may order a cancellation of the fraudulent conveyance, and prohibit the bringing of further suits at law upon the fraudulent title, and thus afford a more complete relief than is possible in a court of law. Dodge v. Griswold, 8 N. H. 425; Tappan v. Evans, 11 N. H. 311; Sheafe v. Sheafe, 40 N. H. 516; Miller v. Scammon, 52 N. H. 609; Traip v. Gould, 15 Maine, (3 Shepley,) 82 ; Cox v. Dunham, 4 Halst. Ch., (8 N. J. Eq.,) 594; Sheppard v. Iverson, 12 Alabama, 97 ; Planter^ dec. Dank v. Walker, 1 Alabama, 926 ; Murphy v. Blair, 12 Indiana, 184; Mohawk Bank v. Atwater, 2 Paige, 54; 2 Pom. Eq. Juris. § 1415.

It is also true that the petition for the attachment described the judgment sued upon as having been rendered on May 12, p. 3311860, when in fact it was not rendered until September 12; that the writ was made returnable upon a day which had not been fixed as the first day of the next term of the court, though it was subsequently fixed upon that day; and that, in changing the venue of the action to Woodbury County, the transcript of the record was sent to such county without being certified by the seal of the court in which the suit was brought. While these might have been good defences to the action, if seasonably interposed, they do not render the writ and all the proceedings thereunder void. Indeed, it is at least doubtful whether, if no notice at all had been served upon Wehrman, the lien of the attachment would have thereby been lost. The object of the notice is to apprise the defendant of the commencement of the suit, and to call him in to defend and prevent the plaintiff from obtaining judgment if he can. The object of the writ, which is issued ex parte, is to enable the plaintiff to obtain a lien upon the land, which may be subsequently enforced by a sale upon execution, if judgment be obtained. If notice were actually served upon the defendant in Wisconsin, as claimed, it is difficult to see why the judgment subsequently entered up was not valid as against the land attached, though of course not against the defendant in personam.

Whether the subsequent proceeding by bill to set aside the deed from Adolph to Frederick Wehrman was invalid or not, it is unnecessary to inquire. The attachment and subsequent long continued possession thereunder vested an interest in the present plaintiffs which was amply sufficient as a basis for this bill. If, as is claimed, the decree in the chancery court was void because no personal service was obtained upon defendant Wehrman within the State of Iowa, there is greater reason why jurisdiction of the present bill should not be declined, since the object of this bill is practically the same as the other, viz., to obtain the benefit of the attachment proceedings. If personal service were obtained in the State of Wisconsin, we see no objection to the decree as rendered, since the Code of Iowa, sections 2831 and 2835, permit personal service or service by publication upon defendants out of the jurisdiction “ in an action for the sale of real property under p. 332a mortgage lien or other incumbrance or charge; ” and such statutes have been upheld by this court. Arndt v. Griggs, 134 U. S. 316. If no proper service were obtained, then we are able to do in this suit what was ineffectually attempted there.

The salient and decisive facts of this case are that Greeley, Gale & Co. obtained, or at least attempted to obtain, a lien upon this land by virtue of their attachment; that personal service of such proceeding was made upon Adolph. Wehrman in the State of Wisconsin, January 25, 1861; that they went through the form of obtaining a judgment against these lands, and selling them upon execution; that Greeley purchased these lands upon such sale, paid taxes thereon, acquired tax titles thereto, and subsequently sold the same, and that plaintiffs in this suit became the purchasers; that they immediately took possession of the same; and that they and their grantors have been in open, notorious, and undisturbed possession for twenty-seven years; have built a house and other buildings, and made other improvements thereon; that Frederick Wehrman, the defendant herein, took title to these lands December 17, 1859, the very day that suit was originally begun against Adolph ; that the deed was made to him under circumstances fending strongly to show that it was intended as a fraud upon the creditors of Adolph Wehrman; that he took no steps to assert his title or right of possession to these lands, but practically abandoned the same until, by the increase of population and the settlement of the country, they had become of material value. Whether he had actual notice of the chancery suit or not, it is highly improbable that if he had been a bona, fide purchaser of these lands, lying in another State, for which he had paid, or agreed to pay, $3000, (almost double their actual value,) he would have taken no steps for nearly thirty years to assert his right thereto. Particularly is this so in view of the fact that he was only an ordinary day laborer at the time he took the deed, having only a few farming implements and a meagre supply of household goods, and, as one of the witnesses expressed it, could not have borrowed without security one-tenth of the sum he was purported to have paid for the property. p. 333Evidently he was not a man to invest $3000 in wild lands and turn his back upon them for twenty-seven years. As was said by this court in Underwood v. Dugan, 139 U. S. 380, 384, “ ownership of property implies two things — first, attention to it; second, a discharge of all obligations, of taxation or otherwise, to the State which protects it. When it appears that one who now asserts a title to property, arising more than the lifetime of a generation ago, has during all these years neglected the property, and made no claim of title thereto, a reasonable presumption is that, whatever may be apparent on the face of the instrument supposed to create the title, were the full facts known, facts which cannot now be known by reason of the death of the parties to the transaction, it would be disclosed that no title was in fact obtained; or, if that be not true, that he considered the property of such little value that he abandoned it to the State which was protecting it.” Considering all the facts of this case, it is not a matter of surprise that, when charged in this bill with having received his deed without consideration, and with intent to defraud the creditors of his brother Adolph, the defendant should not have been called to testify in relation to the transaction. In short, it would be difficult to conceive of a clearer case of estoppel in pais.

It is conceded, or sufficiently appears in the evidence, that the running and management of the road of the Alexandria and Washington Railroad Company were not within the scope of the ordinary powers of the Pennsylvania Railroad Company as a corporation of the State of Pennsylvania. To render the latter company responsible for what might take place on a p. 339railroad in another State some contract or arrangement to that effect must be made to appear.

It was also shown by said report that the Pennsylvania Railroad Company owned, on December 31, 1885, $1,000,000 of the bonds of the Alexandria and Fredericksburg Railway Company, and $2,000,000 of the bonds of the Baltimore and Potomac Railroad Company, and 60,852 shares of the p. 341Baltimore and Potomac Bailroad Company’s stock, and 217,819 shares of the stock of the Philadelphia, Wilmington and Baltimore Bailroad Company.

John S. Barbour testified that he had acted for some years as president and receiver of the Virginia Midland Bailway Company, his official relations with that company ceasing in the latter part of 1884. His testimony was to the effect that he had made arrangements for the running of the trains of the p. 342Midland Railway Company over the road between Alexandria and Washington. He says that there was no contract ever signed, but that his conversations were with officers of the Pennsylvania Railroad Company, particularly naming Mr. Scott and Mr. Roberts, the latter being president of both the Pennsylvania Railroad Company and the Alexandria and Fredericksburg Railway Company; that the Pennsylvania authorities were running the Baltimore and Potomac, and a through line from New York to Quantico; that the Midland Railway Company was to pay 35 cents for each passenger and so much on freight for each carload or by the ton ; that the Midland Railway Company used their own rolling stock and crews. He further stated that he would not say to whom or to what companies his company paid compensation for the use of the road, and that his recollection of the details of the agreement was indistinct, as it was made in 1876. On cross-examination he stated that his company settled accounts with the officers of the Baltimore and Potomac Railroad Company or those of the Alexandria and Fredericksburg Railway Company.

The plaintiffs further gave evidence to show that on the arrivals of the trains of the Virginia Midland Railway Company at Alexandria they were turned over to the authorities operating said roads between that place and Washington, and run between those two points both ways under the absolute control of the last-named parties, who had the right to and did place a pilot in charge of said trains to run the same between those points ; that said pilots were sometimes employés of the Baltimore and Potomac Railroad Company, and sometimes of the Alexandria and Fredericksburg Railway Company ; that all other persons engaged in running said Virginia Midland trains were employés of the last-named company ; that the pilot who took charge of the Virginia Midland train on which plaintiffs were, on the 19th day of February, 1885, when it arrived at Alexandria, and under whose direction and control it was at the time and place of the accident, was Charles F. Bennett, whose uniform was such as is worn by the employés of the Pennsylvania Railroad Company, except that on the buttons were the letters “ B & P,” and whose name p. 343was on the pay-rolls of, and he was paid by, the Alexandria and Fredericksburg Railway Company.

The foregoing is a condensed statement of the evidence relied on as establishing such a relation between the railroad companies, owning the roads and managing the trains at the p. 344time and place of collision, and the Pennsylvania Railroad Company, as to make the latter responsible to the plaintiffs for their injuries.

That the Pennsylvania Railroad Company paid consignees for goods destroyed in the collision, may justify an inference that there was some agreement between the owners of the goods and the Pennsylvania Railroad Company that the latter should be responsible for the goods beyond their own line, but, in that event, the responsibility arose out of such contract, and not out of a contract between the railroad companies. It was, indeed, contended that the act of the Pennsylvania Railroad Company in demanding reimbursement from the Alexandria and Washington Railroad Company for a proportion of such payment is indicative of an existing arrangement between the companies for dividing such losses. p. 345But an examination of the evidence, in this particular, plainly shows that, though the words “ proportion due ” appear at the head of the column stating the amount demanded, yet that the actual demand was for the entire loss, and not for a part or proportion thereof. Such a demand, therefore, is evidence that no agreement existed for a participation in losses.

Our views respecting the exceptions urged on behalf of the other plaintiffs in error are briefly expressed as follows: There was evidence from which the jury might properly infer that the railroad between the cities of Alexandria and Washington was managed and controlled for the common use of the Baltimore and Potomac Railroad Company, (owning that portion of the route that lies between Washington and the south end of the Long Bridge,) the Alexandria and Washington Railroad Company, (owning that portion between the south end of the Long Bridge and St. Asaph’s Junction,) and the Alexandria and Fredericksburg Railway Company (owning the line between St. Asaph’s Junction and Alexandria); that the gross earnings of these companies, derived from this line between Alexandria and Washington, including what the Virginia Midland Railway Company paid for the privilege of running its trains over these tracks and what was received for transportation of mails, p. 346went into the hands of a common treasurer, and were by him, after paying operating expenses, divided among the three companies, according to some rule, not very definitely shown, but apparently in proportion to the miles of track of each road; that the operating and accounting officers of the three companies were the same; that the freight train in question was, at the time of the collision, on that portion of the road which belonged to the Alexandria and Washington Railroad Company; that the engineer and fireman were employes of the Baltimore and Potomac Railroad Company; that the engine was that of the Alexandria and Fredericksburg Railway Company; that the conductor and brakemen were employes of that company; and that the passenger train was in charge of a pilot employed and paid by the three companies, in pursuance of an arrangement to that effect.

In support of the issues thus formed, the Alexandria and Washington Railroad Company put in evidence a record of the Circuit Court of the United States for the Eastern District of Virginia, showing that in a suit of Alexander Hay against said company, on January 19, 1882, George C. Wilkins was appointed receiver of said company, and was directed, after giving bond, to take possession of the railroad, tracks, engines, and property, real and personal, to the company belonging, and to run and operate said railroad for the carriage of freight and passengers, and to make from time to time all needful and proper traffic arrangements with other roads for the exchange of business; and it was further thereby ordered that p. 347said receiver should, as soon as may be, make and file with the clerk of the court an inventory of all the real and personal property that came into his possession as receiver. The said defendant further gave evidence tending to show that said receiver, on the 19th day of June, 1882, took possession of said railroad in pursuance of said decree, and had exclusively held possession and operated and maintained said railroad until after the 19th day of February, 1885 ; that the inventory of property received by him, which was put in evidence, disclosed, among other things, a single track from Duke Street in Alexandria to St. Asaph’s Junction, and a double track from the said junction to the south end of the Long Bridge, with sidings, bridges, etc. The evidence further tended to show that said company had no cars, engines, or rolling stock when the receiver took possession, and that none was acquired afterwards; that the receiver made all his returns of money received to the said Circuit Court, and that such moneys were carried through certain arrangements existing with the Baltimore and Potomac Bailroad Company, the Virginia Midland Railway Company, and with DuBarry and Green, trustees of the Alexandria and Fredericksburg Bail way Company; that under this arrangement the gross receipts of the operation of the route between Alexandria and Washington went into the hands of J. S. Lieb, treasurer, and through a common auditor the net proceeds were distributed pro rata, and to the receiver was paid the pro rata share of the Alexandria and Washington road.

Both these prayers for instructions were refused by the court, p. 348and the case was submitted to the jury under instructions, whose validity is brought before us by the bills of exception. The plaintiffs, to overcome this evidence on behalf of the Alexandria and Washington Railroad Company, put in evidence a report made to the board of public works of the State of Virginia, signed and sworn to by John S. Lieb, treasurer, and H. H. Carter, superintendent of the Alexandria and Washington Railroad Company, for the year 1885. In this report nothing is said about an existing receivership, and there are statements of expenses in repairing engines and tenders, and in paying conductors, engineers, and firemen. It was also shown that at a meeting of the board of directors of the Alexandria and Washington Railroad Company, held in Philadelphia on November 27, 1876, John S. Lieb was appointed agent to receive and receipt for moneys due or to become due the company for transportation of mails between Washington and Alexandria; and that the warrants on the United States Treasury, in payment for carrying the mail between Alexandria and Washington for the quarter ending March 31, 1885, were made payable to the order of John S. Lieb, agent of the Alexandria and Washington Railroad Company. It also was made to appear, by the testimony of Wilkins, the receiver, that he did not make the arrangement by which the trains of the Virginia Midland Railway Company, of the Alexandria and Fredericksburg Railway Company, and of the Baltimore and Potomac Railroad Company ran over the road of the Alexandria and Washington Railroad Company, but that he found an arrangement under which this was done when he was appointed, and he permitted it to continue ; that he sold no tickets over the Alexandria and Washington railroad; that the Alexandria and Washington railroad had no rolling stock or employés in his employment or control as receiver; that he did not know which of the said companies, the Alexandria and Fredericksburg, furnished the rolling stock and employés to run the local trains over the Alexandria and Washington railroad while he was receiver.

“But if you are satisfied that the business on the p. 350Alexandria and Washington Railroad, so far as the interests of the Alexandria and Washington Railroad Company were concerned, was conducted by the receiver after his appointment, and to the time of the collision, in his own name and in such manner that it could be generally known by the public that he and not the company conducted the business and controlled the road and its management, and that he did so to the entire exclusion of any control or participation by the Alexandria and Washington Railroad Company, its officers and board of directors, then your verdict should be for the Washington and Alexandria Railroad Company.”

“ It is the accepted doctrine in this country that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the State by a voluntary surrender of its road into the hands of p. 351lessees. The operation of the road by the lessees does not change the relations of the original company to the public. It is argued, however, that this rule is not applicable where the proceeding, instead of being voluntary, is compulsory, as in the case of the transfer of possession to a receiver by a decree of a court of competent jurisdiction. Whether this be so or not, we are not called upon to decide, because it has never been held that the company is relieved from liability unless the possession of the receiver is exclusive, and the servants of the road wholly employed and controlled by him. In this case the possession was not exclusive, nor were the servants subject to the receiver’s order alone. On the contrary, the road was run on the joint account of the lessees and the receiver, and the servants employed and controlled by them jointly. Both were, therefore, alike responsible for the act complained of, and if so, the original company is also responsible, for the servants under such an employment, in legal contemplation, are as much the servants of the company as of the lessees and receiver.”

Under this plea it was shown that the company, on June 1, 1886, executed a deed of trust to secure payment of the principal and interest of bonds to the amount of one million of p. 352dollars, and that DuBarry and Green were trustees, under the provisions of said deed and of certain orders of the county court of Alexandria County, in the State of Virginia. There was also evidence given tending to show that the said trustees took possession of said road on December 6, 1872, and all of its property, and held, used, and operated the same up to and beyond the time of the said collision, and that, at the time of said collision, the said Alexandria and Fredericksburg Railway Company had in its possession no cars, engines, or rolling stock, and that the trustees in possession under said deed of trust, as aforesaid, did, in January, 1875, appoint George C. Wilkins superintendent of said Alexandria and Fredericksburg railway and property, and that said Wilkins had exclusive possession and management of the road.