KELLER’S APPEAL.
The owner of the land at the time the railroad is built, is the party entitled to the railroad damages ; subject however to the rights of lien creditors.
Appeal and writ of error to Common Pleas No. 1 of Allegheny County : Nos. 85 and 86 November Term, 1881.
This was a proceeding to assess damages brought by N. J. Keller, to the use of Jane Hawley, against The Pittsburg & Lake Erie Railroad Co. The viewers made a report assessing the damages at $1,260. They also made the following report as to the claimants, to the fund:
1st. The plaintiff (for use), who .claims, as the owner of the property at the date of entry of said Railroad Co. and the taking *33of the right of way, the said plaintiff with P. M. Pfeil, became possessed of said premises by deed from J. Keeling, on October 15,1875, the consideration money being $12,000, the- plaintiff and said Pfeil being partners, and said premises being held as as partnership property. The plaintiff claims a dissolution of said partnership, and an assignment of the interest of said Pfeil in said property to him (the plaintiff), the said property being estimated as worth $17,5000.
2nd. C. G-. Hussey & Co. as the assignees of J. Keeling, claim the fund. J. Keeling, the party from whom the land in question was purchased by plaintiff, took a purchase-money mortgage thereon for the sum of $5,000, the mortgage being of even date with the deed, and was duly recorded and assigned by Joseph Keeling, the mortgagee, to C. GL Hussey & Co., the intervenors in the case. Subsequently the mortgage was foreclosed, and at No. 594 March Term, 1880, a judgment was obtained, and on a sale of said premises it failed to pay the amount of the debt, interest, and costs, by an amount, as claimed by said intervenors, of $763.32 ; and for this balance claimed, a suit has been entered on the bond at No. 571 March Term, 1881, to which an affidavit of defense, has been filed by said Keller, who disputes the entire claim. The mortgage was foreclosed after the building of the railroad, the road being built about October 1st, 1878, and no claim for damages was made by the mortgagee, against said company, till the filing of his petition for leave to intervene in this action. At the Sheriff’s sale, the purchaser was not the mortgagee (for use), but was one Pfeil, who paid therefor the sum of $6,100.
This finding was agreed to, as being correct in fact, and was submitted to the Court, to determine who was entitled to the damages, under the facts as stated. The Court decided in favor of Hussey & Co. in the following opinion:
Per Curiam :
"We think the damages should have been awarded by the viewers, in their report, to the owners of the land, at the time the Kailroad Co. took possession ; for use of such persons as were in equity entitled thereto, the first of whom, is the assignee of the Keeling mortgage, and after this is paid, then the assignee of *34said owner is entitled to the residue. It is therefore ordered, that judgment now be entered on the award of damages returned by the viewers in favor of N. J. Keller, the plaintiff, and the same be marked first for the use of C. G-. Hussey & Co. and then the residue for the use of Jane Hawley.
Keller then took a writ of error and an appeal, complaining of the decree of the Court in not awarding all the damages to him.
W. C. Erskine, Esq. for appellant,
argued, that the damages are a personal claim belonging to the owner, at the time the railroad is constructed; McFadden vs. Johnson, 72 Pa. 335. Hussey & Co., having foreclosed their mortgage and sold the property at Sheriff’s sale, had no lien when they asked to intervene-; and consequently had no right to any part of the fund.
Samuel Palmer Esq., contra,
cited: Schuylkill Navigation Co. vs. Thoburn, 7 S. &. R. 411; Reese vs. Adams, 16 S. & R. 40; Powel vs. Whittaker, 88 Pa. 445; Dyer vs. Wightman, 66 Pa. 425.