Cook vs. The North and South Railroad Company.

James C. Cook filed his bill against the North and South Railroad, containing, substantially, the following averments: That said defendant located its railroad through certain inclosed lands of complainant; that when said defendant was about to locate said road through complainant's property, he and William A. McDougald, the president of defendant, rode through said lands and complainant pointed out their situation, connection and fences, and called his attention to the fact that if the railroad should run through said inclosures, it would cause breaks in the fences through which cattle and other animals might pass; that said McDougald then and there assured complainant that defendant would make stock gaps at each and every place where the railroad would cut or strike said fences, and that these assurances were repeated on subsequent occasions; that not long afterwards, the said defendant located its railroad in such a way as to make four intersections of the fences, and, in constructing its road-bed, has made gaps at said intersections through which cattle pass; that said defendant has not constructed stock-gaps at said intersections, and, on the contrary, has refused to construct the same; that when said railroad was located, a question as to the right-of-way arose between complainant and defendant, which was referred to arbitration; that one arbitrator awarded to complainant $4,000, and the other $3,000, and before calling in an umpire, submitted their conclusions to complainant and defendant; that complainant and defendant, through its aforesaid president, agreed to dispense with an umpire, and that the award should be for $3,500, and that the defendant should construct cattle-gaps at the said four intersections, and should also make a crossing for complainant over said railroad at a point above said inclosures, where complainant's mill road crossed; that on September 20th, 1871, relying upon the aforesaid assurances, and believing them binding on said defendant, complainant executed a deed to said defendant, conveying the right-of-way, one hundred feet wide, through said land; that if the said William A. McDougald, president of defendant, did not believe the assurances and

Cook vs. The North and South Railroad Company. promises aforesaid to be valid and binding on said defendant, it was his duty to have communicated this to complainant, and that his neglect to pursue this course was a fraud upon complainant; that in executing said deed, complainant acted on his belief, as above stated, and but for this belief, he would never have made the deed. Prayer, that said defendant be compelled to construct cattle-gaps, as promised; that defendant be enjoined from running cars or engines on said railroad, and from using the same in any way, until said defendant shall have constructed the cattle-gaps, as aforesaid, and shall have permitted complainant to join his fences to the same; that said defendant be enjoined from using said railroad unti! some bridge or crossing be constructed at the intersection of said railroad with complainant's mill road; that the writ of subpoena may issue.

The answer of defendant is unnecessary to an understanding of the decision of the Court.

On June 8th, 1872, the Chancellor refused the injunction and complainant excepted.

HENRY L. BENNING,for plaintiff in error.

BLANDFORD & CRAWFORD, for defendant.

MCCAY, Judge.

We are not called upon to say there is no equity in this bill. Perhaps there is; a jury might find fraud in these proceedings, or breach of confidence. The question before us is, simply, whether the Judge has done wrong in refusing the injunction. Without doubt the complainant is guilty of negligence in not seeing more closely to what he was about, and he does not come before the Court, asking its extraordinary interposition, without fault. Nor does he show any such immediate, irreparable, prospective injury as to demand au injunction. The truth is, he is rather seeking, by indirection, to ask the Court to so act as will compel the defendant to build the stock-gaps, a power the Court rarely, if ever, un

Frazer vs. Jackson.

dertakes. Besides, though the railroad company is a private corporation, yet it exists for the public good, and to grant this injunction will not only restrain the defendants, but will be a great public evil. It ought to be a strong case to justify the interposition of the Judge to do the thing asked. We do not think this is such a case, and Judge Johnson did not abuse his discretion in refusing the injunction. Judgment affirmed.

HILLARY B. FRAZER, plaintiff in error, vs. GEORGE T. JACKSON, defendant in error.

A bona fide purchaser of the absolute title to personal property without notice of any unforeclosed statutory lien upon it takes the same divested of any such lien. Our statutory lien laws secure priority of judgment to favored classes of debts out of certain property of the person who incurred the debts. When such property passes into the hands of a bona fide purchaser without notice and before foreclosure, it is no longer the property of the person incurring the debt, and not having gone into the possession of one affected with notice the lien is lost.

Steamboat lien. Bona fide purchaser. Before Judge GIBSON. Richmond Superior Court. January Term, 1872.

Hillary B. Frazer instituted proceedings to enforce a lien on the steamboat Wave for personal services rendered on said boat while in the service of the People's Daily Line, a corporation created under the laws of the State of Georgia. The lien was foreclosed and the execution levied upon said boat, which was claimed by George T. Jackson. Similar proceedings were instituted in favor of David A. Philpot and Oliver I. Seago against the steamboat Clyde, which was also claimed by George T. Jackson. The last two cases, by agreement, were to abide the result of the first.

The cases were submitted to the Court upon the following agreed statement of facts:

Frazer vs. Jackson.

"That the People's Daily Line owned the steamboats Clyde and Wave, from their construction until May 18th, 1871, when they sold them to William H. Scott; that William H. Scott sold them to George T. Jackson on May 31st, 1871; that Jackson purchased in good faith without any knowledge of the debts due the plaintiffs, Frazer, Philpot and Seago, which are sought to be enforced against the steamboats; that the lien fi. fas. of Philpot and Seago were levied upon the steamboat Clyde on July 22d, 1871; that the lien fi. fa. of Hillary B. Frazer was levied on the steamboat Wave on September 27th, 1871."

The Court held that the several judgments having been obtained subsequent to the purchase of said boats, there could be no lien to defeat a bona fide purchaser for value, and that said boats were not subject to said execution.

To which decision Hillary B. Frazer excepted and assigns the same as error.

BARNES & CUMMING; H. CLAY FOSTER, for plaintiff in error. 1st. The lien attached from the performance of the service: Code, sections 1968, 1969; Acts of 1869, p. 135; 43 Ga. R., 11; Camp & Kemp vs. S. Mayer, assignee, decided July Term, 1872.

FRANK H. MILLER, for defendant. 1. That he can attack the validity of process levied on his property: Phillips vs. Hyde, decided March 12, 1872; 37 Ga., 681; 1st, 317; 30th, 450; 6th, 515. 2. That steamboat liens take effect from date of judgment of foreclosure; 30 Ga., 465; 40th, 540. 3. That the fact being admitted that Jackson owned the boats for some time before foreclosure of liens the same must be illegal, because the allegations in the affidavit, of a demand for payment of the president of the People's Daily Line, as owner, is untrue. 4. It is only judgments that have liens on personal property for two years: Code, section 3525. 5. Steamboat liens can in no event last over twelve months, and where the interest of bona fide purchasers, with

Frazer vs. Jackson.

out notice, is affected, the record must show by bill of particulars, or otherwise, when the lien is claimed to have commenced: 6 Ga., 159-170; 7th, 56. 6. A sale under steamboat liens conveys good title as against those who owe the debt, and still own the boat: 40 Ga., 180. 7. Steamboat liens are in derogation of common law, and strictly construed: 1 Kelly, 317. 8. A bona fide purchaser of a steamboat, for value, without notice of liens, which were not foreclosed until months after the purchase, will be protected: 39 Ga., 352; 40th, 157, 540; 34th, 454; Code, section 3064; 39 Ga., 18; 41st, 208; 32d, 297; 27th, 515. 9. The persons claiming the liens were the captains and mate formerly running the boats. These are maritime liens, and are not such as are provided for by the Constitution of this State, and which a State Court can enforce. 43 N. Y., 554; 4 Wal., 411, 555; 7 Wal., 624-5; 39 N. Y., 19. 10. All liens upon personal property, not granted by the Constitution, other than judgment liens, are void as against bona fide purchasers, who received possession of the property at the time of purchase, without notice of the lien.

MONTGOMERY, Judge.

The facts in this case show the defendant in error to be a bona fide purchaser of the steamboats on which the lien has been attempted to be foreclosed, and that he became such before any attempt at foreclosure, without notice of the existence of the debts of his vendors now sought to be enforced against his property. The case, both as to fact and principle, seems to be identical with that of Rose & Company vs. Gray, 40 Georgia, 156, and must be controlled by it. Judgment affirmed.