CASES

IN THE

SUPREME COURT

OF

ARKANSAS.

LANDRIGAN V. STATE.

(31 Ark. 50.)

Railway company — Right to eject persons from its premisce.

A railway company has the right forcibly to eject from its premises a hotel runner, who comes there to solicit patronage for his hotel, in violation of a regulation of the company, of which he has knowledge.*

HAGRE of assault and battery. The opinion states the facts.

CHAGRE

Loughborough & Moore, for appellant.

Hughes, Attorney-General, for the State.

HARRISON, J. The appellant, Pat. Landrigan, was tried before a justice of the peace, upon a charge of assault and battery, and found guilty. Upon an appeal to the Circuit Court the case was tried upon the following statement of facts:

"On the 14th day of October, 1875, the defendant was the watchman at the depot of the St. Louis, Iron Mountain and Southern Railway Company, in Texarkana, in Miller county, Arkansas.

* See Barry v. Oyster Bay Steamboat Co., 23 Am. Rep. 115.

Landrigan v. State.

The company had adopted a regulation which forbid the entry of innkeepers or their agents upon the platform of said depot for the purpose of soliciting passengers to patronize their houses. This regulation was for the prevention of annoyance to passengers, and interference with the business of the employees of said company, and it was the business of the defendant to enforce it. On the aforesaid day Charles Price, the party assaulted, knowing of the regulation, entered on the platform of the depot for the purpose of soliciting patronage for a hotel. The defendant warned him that he was violating the aforesaid regulation, and notified him to desist; he refused to do so, and thereupon the defendant laid hands upon and, without unnecessary violence, ejected him from the platform.

He was again convicted and fined.

He moved for a new trial, because the conviction was not warranted by the agreed statement of facts, which was refused.

It is well settled that a railroad company has the power to make reasonable and proper regulations for the conduct of all persons who come upon its premises, and to authorize its agents and servants, to remove therefrom, using no unnecessary force, those who violate them. Pierce on Railroad Law, 248; 1 Red field on Law of Railways, 93-97; Commonwealth v. Power, 7 Metc. 596; Hall v. Power, 12 id. 482; Harris v. Stevens, 31 Vt. 79; Whart. Am. Cr. Law, § 1255.

And it is directly decided in the above case of Commonwealth v. Power, that it may remove an innkeeper from the station, who, in violation of its rules, persists in entering it to solicit patronage for his house to the annoyance of passengers, and the interruption of its business.

In that case the Supreme Court of Massachusetts says: "The court are of the opinion that the railroad corporation, both as the owners and proprietors of the houses and buildings connected with the railroad, and as carriers of passengers, have authority to make reasonable and suitable regulations in regard to passengers intending to pass and repass on the road in the passenger cars, and in regard to all other persons making use of such houses and buildings. This authority is incident to such ownership of the real estate, and to their employment as passenger carriers; and all such regulations will be deemed reasonable, which are suitable to enable them to perform the duties they undertake, and to secure their own just rights in such employment, and also such as

Rice v. Wilburn.

are necessary and proper to insure the safety, and promote the comfort of passengers." And they say further: "The regulations in question are such as an individual who should happen to be the owner of the depots and buildings, and of the railroad cars, would have power to make in virtue of his ownership of the estate, and of his employment as a carrier of passengers."

And the Supreme Court of Vermont in the case of Harris v. Stevens, 31 Vt. 92, says: "As has been said the corporations, by erecting their station-houses, and opening them to the public, impliedly license all who enter; still such license is revocable as to all, except those who have legitimate business there growing out of the road, or with the officers, or employees of the company."

The regulation the defendant was enforcing was a reasonable and proper one, and such as the company had a very clear right to make, and as he used no greater force or violence than was neces◄ sary, he committed no offense; and was improperly convicted.

The judgment of the court below is reversed and the cause remanded to it, with instructions to grant the defendant a new trial, and to proceed according to law.

Judgment reversed.

RICE V. Wilburn.

(31 Ark. 108.)

Vendor's lien as against purchaser at judicial sale.

On execution sale of land which the judgment debtor holds by title bond, from the execution creditor, nothing passes but the equity of redemption, and the purchaser takes the land subject to the vendor's lien.

ILL to subject land to vendor's lien. The opinion states the

BILL

case.

Hughes & Smith, for appellants.

WALKER, J. The questions of law to be considered in this case arise upon the following facts, as disclosed by the record:

Albert H. Evans died intestate, the owner in fee of the south half of section twenty, and the north half of section twenty-nine, in township one north, range four west, leaving plaintiffs Amanda,

Rice v. Wilburn.

Charles, Emily and John Evans, his children and heirs at law. Amanda married plaintiff Rice, and Emily, defendant Crockett.

Rice was appointed guardian for the minor children of Evans, and, as such, under the authority of an order of court, and in right of his wife, on the 19th of November, 1859, sold the above described land to George Washington for $1,920, for the payment of which Washington executed to Rice three notes for $640 each, payable in future installments, and Rice executed to Washington his bond, by which he bound himself to Washington to convey to him the land purchased upon the payment of the notes so executed.

The first note was paid, the other two were sued upon and judg'ment taken for the balance of the purchase-money. Executions were issued upon the judgments, made returnable to the 12th of March, 1867.

These executions were levied upon part of the land contracted to Washington, were advertised to be sold on the 11th of March, but no sale was made until the 13th, the day after the executions were made returnable, at which time they were bid off to defendant Wilburn for the sum of $12.

It further appears that, before that time, Washington's creditors obtained judgment against him, upon which executious were issued, and were levied upon the same lands, and, on the 11th of March, two days before the sale under Rice's execution, were sold to Fanaley, who conveyed them to defendant Wilburn,

Washington is dead; his widow and heirs and Wilburn are made defendants.

Plaintiffs by their bill seek to subject the land to the payment of their debt, and claim a specific lien upon it for that purpose.

Defendant Wilburn claimed the land purchased by him at execution sale as his absolute property, free from the incumbrance of the vendor's lien. The court below sustained his claim, refused to subject the land to sale, but decreed in favor of plaintiff as to all of the land contracted to Washington and not sold at execution sale. From so much of the decree as held the plaintiffs' lien discharged on the land sold under execution, plaintiffs appealed to this court.

The question of law presented is, did the sale of the mortgaged property, made by Rice to satisfy the debts contracted for the purchase of the land, and upon which a specific lien, equivalent to a mortgage lien, was reserved, discharge his lien upon the property

Rice v. Wilburn.

sold? Was it an absolute sale of the property itself, or only of Washington's equity of redemption ? Upon this point there is some conflict of decisions.

In the case of Fosdick v. Risk, 15 Ohio, 84, it was held that, where the mortgagee causes the land mortgaged to be sold under execution, the purchaser takes an indefeasible title, though the price paid is not sufficient to pay the debt; and such also is the decision of the Supreme Court of Pennsylvania in Pierce v. Potter, 7 Watts, 475.

But several of the other State courts hold differently, and, as we think, upon more equitable grounds. In Deare v. Carr, 2 Green's Eq. 513, it is held, that when a mortgagee recovers judgment on the mortgage debt, upon sale of the mortgaged property, the debt and the lien are only extinguished to the amount bid and paid.

Jackson v. Hull, 10 Johns. 481, is a case directly in point. The Supreme Court say: "In this case the creditor sues on the bond and obtains judgment and execution, and the execution strictly reaches only the remaining interest of the mortgagor in the land. It reaches the equity of redemption. That is all that was sold in the present case, and was all that the defendant meant to purchase; for, at the time of the purchase, he knew of the existence of the mortgage. The sale was only for the residuum of interest remaining in the mortgagee after the execution of his mortgage. The mortgagee's interest is no further touched by the sale than the purchase-money of the equity of redemption may go to diminish the amount of the debt." The Supreme Court of Mississippi, and of several of the other States, have given their assent to this view of the case, and it is one which we think more fully applies in the case under consideration than in ordinary mortgages. Ordinarily, the mortgagor, until foreclosure, as to third persons, remains the owner of the land. In the case before us there was strictly no sale, but a contract to sell and convey by deed upon the payment of the purchase-money. The legal title all the while remained in Rice, and, never having been parted with, as well remarked by Chief Justice WATKINS, in the case of Moore & Cail v. Irvin & Anders, 14 Ark. 634, "It makes no difference whether the bond for title be recorded or not. If recorded, it becomes notice; if not on record, that circumstance would, of itself, be sufficient to put any subsequent purchaser or incumbrancer upon inquiry."