Summary
In State v. Rives, 27 N.C. 297, RUFFIN, C. J., in the concluding part of the opinion thus declares the law: "The sale in this case was on the premises and on a different day of the week.
Summary of this case from Mayers v. CarterOpinion
(December Term, 1844.)
1. When an act incorporating a railroad company declares that after the assesment [assessment] and payment of the damages for the land to be used for the construction of the road the company may enter upon the said land, etc., "and hold the said land to their own use and benefit for the purpose of preserving and keeping said railroad during the continuance of their corporate existence" (sixty years), "and in all things to have the same power and authority over said land so laid off, during their existence as a corporation under the laws of this State, as though they owned the fee simple therein": Held, that by this clause the corporation, after assessment and payment of damages, became the tenant of the land, as the owner of the legal estate for the term of sixty years, subject to the earlier determination of the corporation from any cause.
2. Held, further, that the provision in this section that the said company "shall hold the said land for the purpose of preserving and keeping up the road" does not make a condition upon the performance of which their estate depends, but these words only assign the reason why the law vests the estate in the corporation.
3. From the nature of things, as for instance, from the absolute necessity of giving such a corporation a right to trespass q. c. f. or ejectment, to protect its enjoyment of the road, it follows that an estate must be vested in the corporation, unless it be clear that the contrary was intended.
4. And such interest in the land may be sold under an execution against the corporation, although the corporate franchise itself cannot be sold under an execution.
5. The right of transporting persons or things over the land of another for toll is but an easement united with a franchise, and is not distinguishable from other franchises.
6. A railroad corporation is not dissolved by the sale of its road.
7. Only the real estate which remains in a corporation at the moment of its dissolution reverts to the original proprietors; what has been divested out of the corporation by its own act or the act of the law does not so revert.
8. Land, therefore, which has been vested in a railroad company for the use of the road, if sold by execution, belongs to the purchaser until the charter of the company would by the limitation of its charter have expired.
9. A railroad is not in all respects a highway publicis juris, but it is the subject of private property, and in that character is liable to be sold, unless the sale be forbidden by the Legislature; not the franchise, but the land itself constituting the road.
APPEAL from NORTHAMPTON Spring Term, 1844; Pearson, J.
S. Whitaker, Attorney-General, for the State.
Thomas Bragg, Jr., for defendant.
(298) The defendant was tried upon an indictment containing two counts: one under section 7 of the act of 1832, incorporating the Portsmouth and Roanoke Railroad Company (2 Rev. Stat., 311), which provides that "if any person shall willfully injure, impair, or destroy, or cause to be injured or impaired, any part of the said railroad," etc., he "shall be subject to indictment" in either the county or Superior Court, and "upon conviction shall be punished," etc. The other count was at common law for obstructing a public highway, meaning the said Portsmouth and Roanoke Railroad. The defendant pleaded not guilty, and the following case agreed was submitted to the court:
Spier Whitaker, Esq., the Attorney-General, who in this behalf prosecutes for the State, and the said Francis E. Rives, agree to submit and do hereby submit the above issue to the judgment of the court upon the following state of facts:
At Fall Term, 1842, of HALIFAX Clement Rochelle and Henning T. Smith recovered against the Portsmouth and Roanoke Railroad Company a judgment for $16,846.81, with interest on $16,180.98 from 24 October, 1842, and $8.50 costs. Under the fi. fa. to the sheriff of Northampton, issuing on this judgment and returnable to Fall Term, 1843, he went to and upon the road at Garysburg and declared his levy, which was as follows: "Levied on the Portsmouth and Roanoke Railroad from Roanoke to the depot at Margarettsville and Concord depots, together with the land on which they are placed. E. J. PEEBLES, Sheriff.
And that he did nothing but this towards making a levy. When he sold, he sold at the road, near Garysburg, and was on the road itself; but although he sold the whole, yet he did not take up and, by manual delivery, deliver to the purchaser, C. Rochelle, any part of the structure of the road, either rails, iron, or other materials in (299) the name of the whole, no did he either then or at the time of the levy pass along and see the whole line of the said road or any part thereof, except what was visible at the place where the sale was made. When the sale was concluded, the sheriff said to Rochelle, "the property was his." The president of the Portsmouth and Roanoke Railroad Company was present at the sale, and had knowledge of Rochelle's purchase. Shortly after his purchase Rochelle notified the company thereof, and some attempted arrangement with the company having failed, Rochelle sold and assigned his bid to the said Francis E. Rives, who, on 1 December, 1843, obtained a deed from the sheriff. The said Rives then made a proposition to the company for an adjustment of his claim, but the parties not being able to agree, and the company having decided that nothing passed under the said sheriff's sale, and their counsel having given an opinion to this effect, the said Rives submitted his case to counsel in this State and to eminent counsel in Virginia, and was advised that, under his purchase, he had a clear right to enter on the line of the railroad and take up and remove the rails, iron, and other materials of the structure. The said road was composed of wooden rails with bars of iron spiked to them, and the rails were inserted into transverse sills partly imbedded in the soil. The said Rives, acting under the advice which he had received, on 6 January, 1844, went upon the line of the said road and caused certain portions of the iron, rails, and sills, thereof, near Margarettsville, in the county of Northampton, and between that place and the bridge at Weldon, to be taken up and removed, thereby making a breach in the track of the said road, so as to prevent the passage of the usual train of cars on the said day and the two succeeding days.
The taking up and removing of the rails, etc., was commenced early in the morning of 6 January, near Margarettsville, at which, there is a regular watering and wood station, and within sight thereof. Soon after commencing the removal, the agent of the defendant, who (300) was superintending the same under instructions from the defendant, made known to the company at Margarettsville that he was taking up the rails, etc., and that he desired him to inform the captain or engineer of the train in order that he should not attempt to pass the station, and desired that he would be particular in giving the notice, as the defendant did not wish any accident to occur; and with this request the agent of the company promised to comply. The train from Portsmouth, to which this communication referred, was not expected to arrive until the afternoon of the day, and there was no train at Weldon.
From the time of the sale to Rochelle up to the said 6 January the said company used the portion of the railroad from Margarettsville to Weldon as they had done before the sale. The distance from Garysburg to Margarettsville is about 15 miles.
If upon the foregoing facts the court shall be of opinion that the defendant is guilty upon either of the counts in the indictment, judgment is to be entered against him accordingly; otherwise, judgment is to be for the defendant.
The presiding judge delivered the following opinion and judgment:
This case turns upon the question whether the railroad which has been obstructed is a public highway, for if it be a public highway it is indictable to obstruct it, as well when the obstruction is made by the company or by one succeeding by purchase to the rights of the company as where it is made by a third person. That the road is a public highway I consider settled by R. R. v. Davis, 19 N.C. 451. The right of the Legislature to condemn private property for the purposes of the road, as the land on which it runs, the wood, stone, gravel, and earth required for its construction and repair, can only be derived from the facts that the road is for the public benefit and is to be used as a public highway. To consider the road as mere private property is to (301) suppose that the Legislature has taken the property of certain citizens without their consent and vested that property in certain other citizens for their individual benefit; whereas, to consider it a public highway with certain incidental private interests fully sustains the authority of the Legislature to make the condemnation. It is a principle of the common law, which expands and adapts itself to new cases as they arise, that wherever the public has a right and that right is invaded, the offender is liable to indictment; and in the case of a railroad, constructed, like the one under consideration, by a joint-stock company, although the company has a private interest, that interest is incidental and secondary, and must be enjoyed so as not to defeat the paramount object, and one which is essential to the creation and existence of the road — the public right. If, therefore, the company should take up the whole or a part of the road, not with a view to repair or replace it by better materials, but with a view to obstruct and hinder the public in the use of it, it would fall within the principle, and the individuals offending would be liable to indictment. This is decisive of the question. To advert to the several counts: One count is at common law for obstructing a public highway; upon this, the court decides against the defendant. The first count is under a clause in the charter which provides a remedy for a willful injury to the road. By giving the company the right to recover a penalty, and also making the offender liable to indictment, this remedy will not reach the company, or one acting under the authority of the company, and it is insisted that the defendant, having succeeded to the rights of the company by purchase at sheriff's sale, is not liable under the claim. Waiving all the objections to the mode in which the sale was made, the court is opinion that no title passed, because the superstructure, that is, in its use and constituting the road, was not subject to execution sale. It is clear that nothing can be sold under execution which the debtor himself cannot sell. The company may sell the materials before they are laid down, but as soon as they become a part of the road the public right attaches, and neither the company nor (302) a purchaser can tear up and ruin that part of a public highway without violating the law. Admitting that the president and directors, if they see proper to violate the charter and subject themselves to indictment, have power to tear up the road, and can then pass a title to the materials, it by no means follows that the title can pass before the severance, still less that the law will lend its aid and pass title by a judicial sale to property which the debtor cannot sell without being liable to indictment, and which in this instance the company cannot sell without violating its duty to its creator and thereby forfeiting its existence.
But it is said that the company, having incurred debts, will not by the principle of our law be permitted to hold property which creditors cannot reach. The company at the time of its creation agreed to perform certain services to the public. After its creation it incurs liability to individuals. As both cannot be discharged, the right of the public must be preferred, because it is first in time and first in importance, and because the individuals who gave credit did so with a full knowledge that the company had this public duty to perform; and one claiming under a creditor has no right to complain because he is not permitted to do that which would prevent the performance of this public duty. The court, therefore, upon the first count, also decides against the defendant.
The court then pronounced judgment against the defendant, from which he appealed to the Supreme Court.
The case was argued at great length at June Term, 1844, by the Attorney-General, B. F. Moore, and Iredell for the State, and by Badger and Bragg for the defendant.
The Court took time to advise, and now, at this term, delivered the following opinion:
This case was treated at the bar as depending upon the question whether the defendant gained a right of property by the sheriff's sale and conveyance in the part of the road purchased or in the materials of which it was constructed. We think that a proper view of the subject, because the statutes which make it an (303) offense to obstruct the road or destroy its materials have in view the acts of a person who is not the proprietor of the road or materials, but acts wantonly and not in the exercise of a right. Section 7 of the charter, for example, provides that if any person shall willfully injure the road he shall forfeit the sum of $500 to the company, to be recovered by the company in an action of debt, and shall also be subject to an indictment. So it is seen that the indictment is given where the penalty is incurred to the incorporation, and that cannot accrue when one enters under the corporate conveyance, or under a sale on execution against the corporation, provided such sale passes the property and the purchaser peaceably enters upon his right of property.
The inquiry, then, is whether by the law of this State the writ of fieri facias lies against the land on which a railroad is laid out. It might be material to distinguish between the road itself and the materials, such as the iron and timber, laid down on it, if the corporation had a mere easement or right of way over the land; for in that case the law would probably, in favor of creditors, regard those materials as mere fixtures of an occupier of land, which might be severed and sold by the sheriff if, as the property of a privileged corporation, they were not altogether exempted from execution. But the Court does not deem it needful to enter into that question here, for two reasons: the first, that the materials were not severed, nor were they sold as distinct from the land; and the second, that we think the corporation had an estate in the land, at least for a term extending far beyond the duration of those materials, and, therefore, that they had lost their distinct character as personal chattels and were sunk into the reality.
We have said that the corporation had an estate in the land laid off for the road. Both the express provisions of the charter and the necessity of the case lead to that conclusion. Section 3 enacts that after the assessment and payment of the damages the company may enter upon the land condemned and hold it to their use and benefit for the purpose of preserving and keeping up the road during the continuance of the corporate existence by the act given to them (304) (which is sixty years), and declares that in all things the company shall have the same power and authority over the said land so laid off during their existence as a corporation under the laws of this State as though they owned the fee simple therein. This language can signify nothing less than that the corporation is the tenant of the land, as the owner of the legal estate for the term of sixty years, subject to the earlier determination of the corporation for any cause.
Most of the railroad charters in this State give an estate in the land in fee. Some estate, indeed, is necessary to the preservation or protection of the road. It is true, the act gives a penalty of $500 for destroying any part of the road. But that is an inadequate protection; for an evil-disposed person might burn a valuable bridge or do some other injury far beyond that penalty in value, or might intrude on the land without actually obstructing the road, and in such cases the company ought to have, and no doubt has, remedy by action of trespass or ejectment, as the tenants or owner of the soil. It is true, the act says the company shall hold the land "for the purpose of preserving and keeping up the road," and it is contended that these words, at least, make the estate conditional, and that the condition is of such a nature as to defeat the estate, if not performed; and thence it was inferred that there could be no sale of it, inasmuch as that would prevent the company from performing the condition. As far as respects the rights of the company, or the private interest of its stockholders, those considerations, if true, could avail nothing; for the debtor has no interest in the question to whom the property shall go after the sale of it for the payment of his debts. That is a question which, in this case, may arise between the reversioner and the purchaser, or between him and the public. An estate upon condition is not necessarily exempted from sale by execution. But we do not regard those words as creating a condition, in its proper sense. They only assign the reason why the law vests the estate in the corporation. The object in view was to (305) have the road, and that is stated as the justification of taking private property and vesting it in the corporation. After being thus taken at the full value paid to the former owner and vested in the corporation, we see no reason why it should not be considered as absolutely vested in the corporation during its existence, or in its assigns during the whole period for which it was taken. In the case of common and free highways the public have only an easement, and, therefore, the remedy for obstructing the passage over it is by indictment merely. But the estate, the right of soil, remains in the original proprietor, who has an action for injury to the land as the owner of the soil, as he might have in respect to any other part of his land. But in the case of a railroad it would be manifestly incongruous not to give to the corporation the action for destroying embankments and the superstructure of the road which the company erected with its funds, but to give such action to the original owner of the land. From the nature of things, therefore, the necessary construction of a charter for such a corporation must be to vest an estate in the land in the company, unless it be clear that the contrary was intended.
Having ascertained that the corporation has an estate in the land and not a mere easement, it seems to follow that such estate is liable to execution. In reference to corporations generally, it certainly is true that in our law their estates, real or personal, are subject to sale on fieri facias in the same manner as those of natural persons. By the act of 1820 the plaintiff, in a judgment against a corporation, is entitled to either a distringas or a fieri facias, and they may be levied on the money, goods, chattels, lands and tenements of the corporation. Rev. Stat., ch. 26, sec. 5. Therefore, it is clear that this land is liable to execution unless it be exempted therefrom either by the express provision of a statute or the necessary inference of a legislative intention to that effect. There is no such express enactment. If there was it would be conclusive; for, doubtless, the Legislature can prescribe what shall or shall not be the subject of execution. But it was (306) contended for the State that such exemption arose from the nature of the property vested in the company and its purposes, and from the interest of the public in the road. It was urged in reference to the interests of the corporation that the preservation of their franchise of receiving toll, which depended on their remaining in possession of and keeping up the road, and their liability to penalties and pains for not keeping up the road, presented considerations of so much more weight than any which the mere satisfaction of a debt to an individual does that the law ought not to take from it the land to which that franchise is annexed. We agree that the franchise itself cannot be sold. It is intangible, and vested in an artificial being of a particular organization, suited, in the view of the Legislature, to the most proper and beneficial use of the franchise; and, therefore, it cannot be assigned to a person, natural or artificial, to which the Legislature has not committed its exercise and emolument. We admit, also, that the right of passing or of transporting persons or things over the land of another for toll is but an easement united with a franchise, and is not distinguishable in this respect from other franchises. Yet it will not follow that if the grantee of a franchise, whether a natural person or a body politic, has a vested property in a tangible, personal, or real thing, that such thing may not be taken in execution, although it be useful or indispensable to the most beneficial or even any enjoyment of the franchise; unless, indeed, it be declared by the Legislature not to be liable to distress or sale. It may be very unfortunate, and cause much loss in a pecuniary sense, to arrest the exercise of a franchise by depriving its proprietor of an estate or thing needful to its exercise, when, of the two, the franchise or the tangible thing, the former is much the more valuable. We regret, sincerely, that it has hitherto escaped the attention of these companies, and of the Legislature, that some act was necessary in order that such sales, when unavoidable, might be made with the least loss to the debtors and the greatest advantage to the creditors and purchasers by providing for the keeping of the franchise with the estate. Or, if it so please the Legislature, an act might provide for putting the road into the hands of a receiver, and subjecting the income to the creditors, instead the estate in the land, stripped of the franchise. But nothing (307) of either kind has been done, and those are conditions for the Legislature as to their future action, and cannot influence the decision of the Court as to rights of the creditors of these corporations under a different state of the law. The question for us is between the necessity, on the one hand, of subjecting the tangible property of this corporation to sale for its debts, although at the expense of the suspension or loss of its franchise, or, on the other hand, of saying that the creditor has no remedy whatever, and that the corporation may keep its property and enjoy its profits in defiance of moral right and the process of the law. Between these alternatives a court of justice cannot hesitate. If the corporation has means to pay its debts and will not, or if it has contracted debts which it is not able to pay without a sale of its property, we can only say that it is the duty of the court to enforce payment by a sale of the corporate property, be the consequences to the pecuniary interests of the corporation what they may. The law is not responsible for those consequences; but they have been brought on the corporation by the want of integrity or prudence in its management. It is a sacred principle of justice and law, applicable alike to all persons, natural and corporate, that the obligations of contracts should be enforced and debtors prevented from retaining their property to the disappointment of the creditors. And it is likewise a principle of equity and policy that all debtors should be placed on the same footing; and, consequently, that what one is compelled to yield up to his creditor another shall not be allowed to keep to his own use. Against the operation of those sound and salutary maxims of morals and law it requires much more to be opposed than an argument of inconvenience, that the debtor loses much more than the creditor gets. Still, it is to be replied that the creditor is entitled to his debt at all events, and that he ought to have it, even at that expense rather than not at all. Therefore, an execution against the property of a corporation, which (308) the law expressly gives against all corporations, must be satisfied out of its property, provided only that such property be within the description of goods, chattels, lands, or tenements. When the law awards an execution of that kind, how can the court say, without a direction from the Legislature, that it shall not be served on chattels or certain lands of the corporation, because it would be a detriment to the corporation to be deprived of them? There is no mischief in the case comparable to that of leaving just debts unpaid — debts necessarily contracted for the labor or property of the creditor employed in constructing the road. That would be the view properly to be taken of the law if there were no special provision in the charter of this company denoting an intention that its property should be liable to execution. But there is an express provision of that kind. By the charter the company has the faculties of suing and being sued, and is to enjoy all the rights, privileges, and immunities of a body politic; and by section 4, for the damages assessed for entering on land and taking stone, earth, and timber for making the road, the execution is expressly given against this, "as against other corporations." It is true that the act specifies but one case in which it gives execution. But there is no reason why a peculiar preference should be given to that demand above all others as to the mode of obtaining satisfaction. That case was particularly mentioned, because it was proper to give a summary assessment of the damages and speedy satisfaction of them as a justification for the taking of private property. But when another debt is reduced to judgment by the regular course of law, that ought also to be satisfied in like manner; and, hence, the particular case mentioned in the act is not to be looked on as one to which a peculiar remedy is annexed, but, rather, as an example of the mode in which payment of the debts of this corporation was to be obtained, that is, by making its property, including, of course, all its property, liable to execution for its debts as the property of corporations generally is liable on execution for their debts. In other words, it was not intended to discriminate between railroad corporations and other corporations as to their duty of paying debts, or the modes of coercing them to the performance of their duty. It was admitted by the counsel for the State that (309) this proposition must be received as true in respect to all the other property of the company except the land on which the line of road runs, such as the cars, locomotives, supply of wood, timber, and iron not laid down, and land purchased for depots; but it was insisted that it was different with respect to the land forming the road itself. The exemption of that was claimed upon the ground that by the sale of it the corporation itself ceased, so that eo instanti the land reverted to the former owner, and, consequently, the purchaser got nothing; and so, as the law does nothing in vain, and especially when attended with such destructive consequences, it was inferred that there could be no such sale. But the position is not true that the corporation is dissolved by a sale of a part of the road, nor, indeed, immediately upon the sale of the whole road, as it seems to us. It may because of forfeiture, if insisted on by the State; and without any prosecution it may, in process of time, amount to a forfeiture. But by the express provision of the statute it requires the disuse of the corporate privileges and powers for two years to amount, of itself, to a forfeiture. Now, although it be generally true that upon the expiration of a corporation or its dissolution, unless otherwise provided by statute, the real estate undisposed of will revert to the donor or original owner; yet that is only true as to such estate as remains in the corporation at the moment of its dissolution, and does not apply to such as had been divested out of it either by its own act or by the act of law. In this case, therefore, the sale was not vain, but the purchaser got the estate in the land which belongs to the company. If that was not so by the common law, it would, we think, necessarily be so upon the construction of our statute which gives the writ of fieri facias against the company; for, instead of arguing that there should be no sale because the purchaser gets nothing, the argument is the other way, that the purchaser does get the estate, because the sale of it is authorized; and, therefore, even upon a subsequent dissolution of the corporation, the land would not revert until by lapse of time the charter (310) would have expired. But, really, there is no more ground for exempting the line of the road than the other property of the company: for its operations, the beneficial use of the road either to the company or the public, is as effectually suspended by the sale of all its other effects as by that of the road itself. Indeed, it must be supposed, under our law, that its personal effects have been sold or purposely withheld and concealed by the company, because the sheriff cannot rightfully sell land while there are personal chattels. If so, then the creditor is reduced to the last resort, namely, on the lands for his debts, and for the reasons already given, it must go rather than he should be defrauded of his debts.
The question has thus far been considered in reference to the conflicting claims of the creditor and the corporation to the protection of the law. The counsel for the State, however, interposes, as a further and distinct objection to the sale of the road, the right of the public to the use of it as a highway, and the necessity that the company should retain the road to enable it to perform its duty to the public by keeping it up as a highway. This position rests on the assumption that, because the road is a highway, it is ex vi termini not liable to execution. Now, we cannot assent to that proposition in the extent here laid down. Its correctness depends on the sense in which the term "highway" is used and on the legislative intention as to the liability of the property of railroad companies for their debts. The Court said in R. R. v. Davis, 19 N.C. 451, that a railroad is a highway; but it does not follow, and certainly it was not intended, that it should be understood to be a common public highway on which all citizens were free to pass, and which, from necessity, could not be the subject of execution, because there is no estate in the public, and because the easement is exclusively in the public. In that respect there is an essential difference between the one kind of roads and the other. Railroads, although publicis juris in some respects, are the subjects of (311) private property, and it is in the latter character that they are liable to be sold, unless forbidden by the Legislature — not the franchise, but the estate of the corporation in the land, which is a distinct thing from the franchise. In the sense that the land and other things taken for its construction are taken for a public use, inasmuch as it is a mode of opening avenues of communication between different parts of the State, and with other States, and, therefore, that it was a proper exercise of the right of eminent domain, we think the expression was correctly used. We have no doubt, too, that it is so in some respects as to the modes of enforcing its due reparation and punishing its obstruction. The latter is expressly made an indictable offense, as is shown by the case now under consideration. The State may compel the company, by mandamus, to make calls on the corporators to the full amount of their subscriptions, and lay out the whole capital and profits in constructing the road and keeping it in repair, if adequate and necessary to that end. In re R. R., 2 B and Ald., 646. So, while the company is in possession and using the road, it must be indictable for nonrepair, upon the settled principle that they are bound to repair by their engagement to the public in accepting their charter and occupying the road. But that it is a highway in the sense that it is not the subject of execution is quite a different thing. That depends upon the Legislature, and the silence of the Legislature as to the liability of it to execution necessarily leaves it thus liable. Roads of this kind have peculiar properties — having a double aspect, the public service and private profit. But both must necessarily yield, in honesty and justice, to the consequences of the impracticability of constructing and keeping up the road by the means provided by the charter, and without contracting debts for those purposes. The public does not obtain an absolute right to require the corporators to construct the road by the acceptance of the charter and entering on the work. The engagement of the company is only to lay out the capital assigned them and subscribed; and to that extent they may be compelled to proceed. If that be not (312) adequate, it is simply a case of miscalculation of estimates by both sides and the public loses the use of the road on its side, and the corporation loses its purchase and capital, unless there be a new agreement granting further facilities to the corporation. But suppose the road to be completed or kept up by contracting debts — and for such purposes only can the corporation contract debts — or suppose the company to incur a liability for damage to an individual: it is plain, we have seen, that the corporation ought to pay those debts or damages.
Now, can it be imputed to the Legislature that it intended in passing this charter that such debts should not be paid, and that in order to prevent the payment of them the public prerogative to a right of way should be asserted, and under cover of it the road should be preserved to the corporation as its private property? We think, clearly, not. If such a thing had been asked for in the charter, it would have been thrown out of either house of the Assembly with disgust and scorn. If the Legislature were making the road on the public account alone, the public faith would be the guaranty that all demands for labor or materials laid out on it should be fairly paid. So it was not the intention of the Legislature that this road should not be paid for or that it should be built at the expense of any person but the corporators. The public would not have it on any such terms; and if persons who have laid out their money or labor on it cannot otherwise obtain satisfaction but by a sale of the road, there can be no doubt that the public ought to give up, and intended to give up, the convenience of the road rather than do the injustice to the citizen of denying him compensation for making it. If the public cannot have the road and the creditor of the company also be paid, if one must yield, there can be no hesitation in saying that the public ought and would promptly yield. If the public should insist upon its rights, then it is bound to make compensation to the creditor out of the treasury; for it ought not to suffer him to remain unpaid for executing what is claimed as a public work. But no such obligation has ever been supposed to lie in the State, simply for the reason that the corporation was (313) properly liable. But that cannot be rendered effectually liable unless through the instrumentality of an execution served upon its property. We do not know wherefore the company did not pay the debt for which this sale was made. But whether it arose from want of inclination or ability, the fault or misfortune is theirs; and the State never could have intended to impose and screen either a solvent or insolvent company from the payment of its debts. If the corporation be insolvent, it must, like every other insolvent debtor, give up its property, unless the State either assumes its debts or by a plain and unequivocal act declares the exemption of its property. If the State chooses still to have a railroad, it may either enable this corporation to enter on the land again, making compensation for it, if it be not already endowed with the power, or a new charter may be granted to another company, or it may be executed by the State directly. But by constituting a corporation to executor this work, and to have property in it; by enacting that the fieri facias shall run against the property of corporations generally; by not exempting the property of the railroad company from the general liability of corporate property to execution; and by declaring in some cases that execution should run against it "as against other corporations," the legislative intention must clearly be understood to have been that the public right to the use of the road should be dependent upon the ability of the corporation to meet the just demands of its creditors without a sale of the road. Paying the debts for making the road is the first and highest duty of the corporation. The element of that duty is moral, and precedent to any mere duty of police; and the Legislature cannot be supposed to have intended a violation of that first of duties upon any evidence less than its explicit enactments.
The Court is, therefore, of opinion that this land was liable to be sold on the execution, and that the purchaser would have obtained a good title had the sale been duly made. It was not, however, duly made. By the statute, Rev. Stat., ch. 45, sec. 10, it is enacted that all (314) sales of land and slaves shall be made at the courthouse on Monday of the county court, or the corresponding Monday in every month. The sale in this case was on the premises and on a different day of the week. We have more than once said that this is a substantial part of a sheriff's sale, because the regulation is for a sale of all the property at one place and at the same time which may be offered for sale in the county in any one month, under the expectation that there will be numerous bidders and fair prices had. Of such a regulation every one must be cognizant; and, therefore, we have held that a purchaser gets no title by a sale at an improper time and place. Mordecai v. Speight, 14 N.C. 428; Avery v. Rose, 15. N.C. 554. For this last reason the judgment must be affirmed. We regret that result, as we have just been informed that there is a private act regulating sales in Northampton County, and that the sheriff observed its provisions in this sale. If so, it is unfortunate that the act was not stated in the case; for, being a private act, we cannot judically [judicially] notice it, and, indeed, we have not seen it.
PER CURIAM. Affirmed.
Cited: S. v. Johnson, 33 N.C. 660; Taylor v. Jerkins, 51 N.C. 318; Carrow v. Tollbridge Co., 61 N.C. 121; Navigation Co. v. Costen, 63 N.C. 267; Gooch v. McGee, 83 N.C. 61; Mayers v. Carter, 87 N.C. 147; Asheville Division v. Aston, 92 N.C. 584; McCanless v. Flinchum, 98 N.C. 377; Dula v. Seagle, ib., 461; Loudermilk v. Corpening, 101 N.C. 650; Hughes v. Comrs., 107 N.C. 608; Bass v. Nav. Co., 111 N.C. 446; Pipe Co. v. Howland, ib., 624, 633; Logan v. R. R., 116 N.C. 945; Wilson v. Leary, 120 N.C. 92; Coal Co. v. R. R., 144 N.C. 746; Williams v. Dunn, 163 N.C. 213.
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