These sections refer to liens arising both from judgments and levies. Section 2 gives the judgment a lien on lands within the county. Section 4 gives, or rather recognizes, a lien from the time of the levy, both upon lands and personal property. The latter regulates the lien which it creates, but provides against any interference with older or preferable liens. Section 23 creates no lien; it merely limits it in the given case. Let us apply the principles of the proviso in section 4 to this case. The defendants each acquired equal liens from the date of the levies made upon their executions; but the plaintiff had a lien from the date of her judgment, which was elder, and therefore a preferable lien. Under the proviso of section 4, it would overreach the right of defendants. They are therefore thrown back, and compelled to rely on their judgment liens created by section 2, and limited by section 23, or lose the proceeds of their sales; relying upon their judgments, they have equal liens with the plaintiff, and no more. The money should have been distributed to each of the parties pro rata, in proportion to the amount of their several judgments, and in failing to make this equal distribution the court below erred.
2. Estates pur autre vie.
3 Hill (N. Y.), 441- - 1842.
Costs against the plaintiff suing as administrator.
The plaintiff's intestate held certain premises under a lease for three lives, one of which lives continued after his death. Subsequent to the intestate's death, the defendant's testator occupied the premises under the plaintiff, and the present action was for that use and occupation of the property. The cause having been referred, there was a report for the defendant on the ground that the claim was barred by the statute of limitations. The defendant now moved that the plaintiff be ordered to pay the costs of the action.
By the court, Bronson, J. - On the death of the owner, an estate pur autre vie becomes a chattel real, and goes as assets to the executor or administrator to be applied and distributed as part of the personal estate of the testator or intestate. 1 R. S. 722, sec. 6; 2 Id. 82, sec 61. The cause of action accrued after the death of the intestate, and the plaintiff did not necessarily sue in his representative character. In such cases it is well settled that an executor or administrator must pay costs if his suit fails.
1 New York Real Property Law, § 24 - Ed.
3. Shares of Stock in Land-Holding Corporations.
1 Ohio State, 350. - 1853.
Petition by the widow of Benjamin Johns to have dower set off to her in certain shares of railway stock owned by said Johns at his decease. The executor answers alleging that such shares are personal and not real estate.
Thurman, J. - The Ohio and Pennsylvania R. R. Co. was incorporated February 24, 1848. 46 Ohio Local Laws, 261. The fifth section of its charter provides that the company "shall have all the powers and privileges, and be subject to all the restrictions and provisions of the act regulating railroad companies," passed February 11, 1848. 46 Ohio Laws, 40. The third section of this latter act declares that the shares of stock in the companies that may be subject to its provisions, "shall be regarded as personal property, and shall be subject to execution at law." It is therefore manifest, that the petitioner is not entitled to dower in the ten shares of the stock of the Ohio and Pennsylvania R. R. Co., for they are clearly personalty. But the question in respect to the stock in the Mansfield and Sandusky City R. R. Co. is not so easily disposed of. For that company is not, so far as the case shows, subject to the provisions of said act of February 11, 1848. It was previously chartered and organized, and that act does not interfere with companies created before its passage. Turning then to the charter of the company, we find in it no provision declaring whether its stock is realty or personalty. We are thus brought to the general question, whether railroad shares in Ohio are, in the absence of express legislative enactment, to be considered as real, or personal estate. This question must be determined by a reference to the principle of the common law, and the general statutes of the State, that have a bearing upon it. And its solution is not without difficulty; for as to the common law the adjudicated cases are directly conflicting, and when we resort to our statutes, the chief aid we derive is from analogies and inference. * * *
By a statute of 10 Anne, the mayor, aldermen and common council of the city of Bath, their successors or assigns, or such persons as they should appoint, were authorized to improve the navigation of the river Avon, and to charge tolls on persons and property transported thereon. * * *
In Buckeridge v. Ingram, decided in 1795, 2 Yes. Jr., 651, the question was directly made, whether these shares were personal or real estate, and it was decided that they were real estate and subject to dower. The master of the rolls held that the right to take the tolls was an incorporeal hereditament arising out of realty and was therefore a "tenement."
And he remarked: "I have no difficulty in saying, that wherever a perpetual inheritance is granted, which arises out of lands, or is in any way connected with, or, as it is emphatically expressed by Lord Coke, exercisable within it, it is that sort of property the law denominates real."
The principle of these cases was followed, and possibly extended, by the Supreme Court of Connecticut, in 1818, in the case of Welles v. Cowles, 2 Conn. 567, in which it was held that shares of an incorporated turnpike company are real estate. The right to the tolls, said the Court, "is a right issuing out of real property, annexed to and exercisable within it and comes within the description of an incorporeal hereditament of a real nature, on the same principle as a share in the New River, in canal navigations, and tolls of fairs and markets; " citing Drybutter v. Bartholomew, 2 Peere Williams, 127, Haberghamv. Vincent, 2 Ves. Jr. 232; and The King v. The Inhabitants Chipping Norton, 5 East, 239.