This is an appeal from the Circuit Court of the United States for the Eastern District of Tennessee. The suit was originally brought in the Chancery Court of Hamilton County, from which it was removed into the court first mentioned. It was a bill to foreclose a mortgage on twenty-two acres of land in that county, which is described with particularity by metes and bounds in the bill, and is there alleged to have been purchased of J.P. McMillin by the Alabama and Chattanooga Railroad Company, the mortgagor, on the 25th day of March, 1869. No such description of the land is found in the mortgage
The defendants deny that, by any fair or just construction of the mortgage, it can be held to include the twenty-two acres in question.
There are other grounds of defence set up, on one of which the decree against plaintiffs was rendered, namely, that the suit was barred by the statute of limitation. But if the defendants are right in the assertion that the land was not conveyed by the mortgage deed, all other questions are immaterial.
It appears that the Legislature of the State of Alabama authorized the governor of the State to issue to the Alabama and Chattanooga Railroad Company its bonds to the amount of $2,000,000. The statute, however, required the governor, before he delivered these bonds, to demand of the company its own bonds of an equal amount, secured by a mortgage on certain property mentioned in the statute. The mortgage was made and the bonds issued to the State in exchange for bonds of the State delivered to the company.
As the language descriptive of the property to be mortgaged, as found in the statute, is found identically in the reciting part of the mortgage and in its granting clause, and as this question is to be decided by a construction of that language, it will be given here verbatim from the mortgage deed:
"EXHIBIT `C' to original bill."
"This instrument of mortgage, made this second day of March, in the year eighteen hundred and seventy, by and between the Alabama and Chattanooga Railroad Company, a corporation of the States of Alabama, Georgia, Mississippi, and Tennessee, the party of the first part, and the State of Alabama, the party of the second part, witnesseth: That whereas said State of Alabama, by an act entitled `An Act to loan the credit of the State of Alabama to the Alabama and Chattanooga Railroad Company, for the purpose of expediting the
"Now, therefore, the said Alabama and Chattanooga Railroad Company, in compliance with the terms and conditions of said act, and for the purpose of obtaining the aid thereby granted to this corporation, and in order to secure the punctual payment of all said first-mortgage land bonds of this corporation, does hereby grant, bargain, sell, enfeoff, release, assign, and convey unto the State of Alabama, and its successors and assigns, forever, all lands granted by the United States to and for the benefit of this company, and all the right, title, interest, and estate which said company now has, or may hereafter lawfully acquire, in or to said lands, subject to this reservation to said company, as by said act provided; that said company shall have the privilege and right of selling said lands, or any part thereof, in accordance with the act of Congress granting the same, and entitled `An Act to renew certain grants of land to the State of Alabama,' and approved April 10th, 1869; Provided, however, That the proceeds of said sales shall be appropriated to the payment of the first-mortgage land bonds of said company to be issued to the State of Alabama, as aforesaid; also the telegraph line and telegraph offices along the line of said road, and belonging to said company; also the machine-shops and all other property in said State of Alabama, Georgia, Tennessee, and Mississippi belonging to said company; also all coal mines now open or hereafter to be opened and worked belonging to said company, and all iron or other mineral lands, and all iron-manufacturing establishments now in operation and hereafter to be constructed; saving and excepting only from said granted premises such and so much of the same as said company may have heretofore conveyed in mortgage in or by either or both of two indentures of mortgage, both made on December 19th, 1868, and covering the railroad and certain other property of said company, for a more specific description whereof reference is hereby made to said two indentures, the same having been recorded in the counties where said road is located."
It is to be observed that the land sued for is nowhere spoken
Now, the mortgage deed describes ex industriâ the several species of lands which it conveys. The first of them, by far the most important, is "all lands granted by the United States to and for the benefit of this company, and all right, title, interest or estate which said company now has or may hereafter lawfully acquire in or to said lands." If the company had intended to grant all its lands within the States of Alabama, Georgia, Tennessee and Mississippi, and it must have had other lands in these States, why not have said so, instead of saying all the lands granted by the United States? It was, therefore, only this class of lands which was conveyed by this first clause of the deed. After some reservation of the right of the mortgaging company to sell these lands and appropriate the proceeds to payment of the bonds secured by the deed, the granting language proceeds, "also the telegraph line and telegraph offices along the line of said road and belonging to said company; also the machine-shops and all other property in said States of Alabama, Georgia, Tennessee, and Mississippi belonging to said company; also all coal mines now open or hereafter to be opened and worked belonging to said company, and all iron or other mineral lands, and all iron-manufacturing establishments now in operation and hereafter to be constructed."
While the company is thus specific in its description of the subjects of the mortgage, enumerating with great particularity its land grant from Congress, its telegraph lines and offices, its machine-shops, and its coal mines, it is quite unreasonable to suppose that the company would have been thus needlessly minute in its description of the property conveyed, enumerating with great particularity the four or five classes of property, mostly real estate, which were intended to pass, if it had also intended that the three words, "all other property," should stand for everything in the four States which the company owned, and especially all its lands.
These words, which are found neither in the beginning of the granting clause as a general phrase to be afterwards emphasized by a more minute description, nor at the end, as a
It is not to be denied that in a writing descriptive of property to be transferred or assigned, the more general words which include all that is intended to be conveyed are not to be frittered away by an attempt at a description of each particular thing, fairly included in the more general language. But in such case it must be apparent that the intent was to include all that could be embraced within the more general terms: If, for instance, the description of the property mortgaged had commenced by saying "all the property of the grantor, real, personal, and mixed, in the States of Alabama, Georgia, Mississippi, and Tennessee," and had then attempted to enumerate this property, but had omitted some of it, this omitted part would have passed as in Spindler v. Shreve, 111 U.S. 542, 544. So where the instrument professes "to convey all my property," or "all my estate," or "all my lands wherever situated." In all these cases referred to in Wilson v. Boyce, 92 U.S. 320, 325, there were no words to qualify the generality of this description.
In fact there were no other words of description, and their full effect must be given to them. This latter case is relied on by appellant's counsel as conclusive in the one now under consideration. In that case the bonds issued to certain railroad companies were declared to be a "first lien upon the
We do not believe this was intended or can be fairly implied from the language used, the minute descriptive character of which is found three times in this contract, namely, in the statute authorizing the transaction, in the preliminary recital of the mortgage deed, and in its granting clause, all of which is useless if the phrase "all other property," as there used, was intended to include all lands and all interest in lands in the four States through which the road passed.
The decree of the Circuit Court is