Commonwealth Trust Co. v. Scott City Northern Railroad

Citations

• 93 Kan. 340
• 144 P. 210
• 1914 Kan. LEXIS 435

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Execution — Levy upon Engine as Property of Execution Debtor — Claimed by Third Party — Conflicting Evidence■— Findings Sustained. On the trial of an issue to determine whether an engine which had been levied upon was the property of the execution debtor, a construction company, or of a railroad company claiming to own it, the fact appeared that the engine originally belonged to the construction company. The evidence was conflicting upon the question whether it had been transferred to the railroad company. A finding that no transfer had been made is therefore sustained.</p> <p>2. Same — Competent Evidence to Show Ownership of Property. Evidence that the president of the railroad company stated to the representative of the execution creditor before the levy was made that the engine did not belong to the railroad company, but did belong to the construction company, is held admissible in the situation stated in the opinion.</p> <p>3. Condemnation Proceedings — Right of Way — Landowner’s Lien for Award of Damages Superior to Mortgage Lien. Land was appropriated by statutory proceedings for the right of way of a railroad and an award of damages was made. Without paying the award the company entered into, and remains in possession of, the right of way. The landowner brought an action upon the award, and recovered judgment for the amount awarded, or for the possession of the land on default of payment. Before the condemnation proceedings were instituted the railroad company had mortgaged its property, including the right of way, to secure bondholders. In an action for foreclosure the landowner pleaded the condemnation proceedings and the unsatisfied judgment, and claimed a prior lien. It is held that the lien of the mortgage is subject to the charge or lien for the amount of the award and judgment.</p> <p>4. Same. The fact that the landowner held the land upon which the right of way was appropriated under a contract of purchase, the lega