Means v. Cincinnati & Chicago R. R.

2 Disney (Ohio) 465

• Court: Ohio Superior Court, Cincinnati
• Decided: March 15, 1859
• Docket: No. 8,957
• Status: Published

Opinion

Gholson, J.

It is plain that the claim of the plaintiffs must fail.

The first inquiry is, whether these bonds held by Gilbert, can be reached by an action in aid of a judgment creditor? If they can be, it is only as goods or effects subject to levy and sale in the hands of a third person. There are cases in which it has been held that railroad bonds may be property and subject to seizure and sale. Burt v. Kentucky Trust Co., decided in this court. But the principle can not apply when bonds have been made by the company, against which the judgment has been rendered, and are in the possession of its agent or held for its use, and have never, in fact, been delivered. That such bonds are secured by a mortgage of real estate can make no difference. It would be all one, as if a party should make a mortgage and secure ten notes, negotiate one and retain the others, and then claim that his land was incumbered by them all. A railway company has no greater privilege in this respect than an individual. If, after the bonds and mortgage are made and the latter recorded, the railroad still holds the bonds, its lands are not to be exempted from the lien of a judgment, as to bonds not delivered. Those who deal with the railroad must look to the security in this respect at the time they take the bonds. There would be no other safe course.

As to the lien.in this case, it does not appear in fact that there is any — no possession is shown,- but the reverse. If this action prevented the lien from being in fact obtained, it will now be put out of the way. The attorneys if they be so entitled can get possession of the bonds, and then the question may arise, whether they can sell the bonds of their clients, never in fact delivered and held wrongfully under the. claim of a lien. Upon that point it is not necessary for me to express an opinion.

In conclusion, I may remark, that the courts in my opinion have gone far enough at the instance of third persons, to whom they have been pledged, in selling the stock and bonds of railroad corporations. This case I think requires me to go further than any have yet gone within my knowledge, and this I am unwilling to do.

Action dismissed.