
    F. & C. Turnpike Company vs. Young.
    The judgment creditors of a turnpiko company in which the state is a stockholder by virtue of the act of 1837, ch. 107, have the right to seise slaves, mules and other property owned and used by the company in the repair of the road, and such company cannot interfere and set up in chancery the lien of the state to protect such property against tho executions of such creditors.
    This bill was filed in the chancery court at Columbia by the president and directors of the Franklin and Columbia Turnpike Company against E. Young.
    The bill charges that Young recovered a judgment against the complainants for the sum of $fil7 85; that several executions have been issued on said judgment and returned nothing found, that on the 15th day of February, 1847, a pluries fi. fa. issued to the sheriff of Maury county, ánd was by him levied upon the following property to wit, six negro men which the complainant had hired to work on the road and keep it in repair, also one wagon, four mules, and harness, which were used by your orator for the same purpose; that said property was absolutely necessary to keep the road in repair, so that-, the public could use and enjoy it, and if said property is sold their gates will be thrown open and complainants deprived of exacting legal and customary toll. Complainant states that it has the right to appropriate so much of the pet profits of the road to .the exclusion of creditors as is necessary to keep it in repair to protect the public from loss, and that so much of the net profits as they may appropriate to that object is not subject to execution at the'instance of creditors. The bill further charges that the state is a stockholder in this road, that it has paid up the last instalment of its stock; that there is still due from delinquent stockholders to the president and directors of said corporation between ten and twenty thousand dollars, and that for this sum, the state has a lien upon all the works, property, profits, rents and tolls of said road; that said complainants are trustees for the state of all the property, rents, and tolls of said company, and the state has a lien on all the property purchased and on hand with said trust fund, and this sum is not subject to ‘the defendants of the company till the lien of the state is first discharged. Complainant further charges that if the sheriff is not restrained from levying on the property aforesaid, the road will become wholly useless and the state be deprived of the proceeds of its stock and deprived of the means of the payment of the public debt created for purposes of internal improvement. They therefore pray an injunction against the execution and sale of the property of owner!
    This bill was presented to Judge Dillahunty, who granted an injunction. A decree was entered in the following words.
    “This cause coming on to be heal’d this — day of March, 1847, before the Hon. Terry H. Cahal, upon the motion of defendant, to dismiss the bill of the complainants, and dissolve the injunction heretofore granted in this cause, and the court being of opinion that the property levied upon by the execution in favor of defendant constitutes no part of the road built by the complainants under their charter, and that therefore the State of Tennessee has no lien on said property by virtue of several statutes passed for its benefit on that subject, the court is therefore of the further opinion that for want of equity apparent on the face of the bill, the same ought to be dismissed. It is therefore ordered, adjudged, and decreed by the court that the complainants’ bill be dismissed and the injunction be dissolved”
    From this decree the complainants appealed.
    
      M. S. Frierson, for the complainants.
    1st. We insist that the property levied upon, by the defendants, and which is specified in the bill, belonged to these complainants. The slaves were hired. The wagon and mules purchased, with the profits arising from said Turnpike. If the property did not belong-to said company, the defendant had no right to levy on it. If the property belonged to the company, then the state had a lien upon it, as well as upon the property of the individual stockholders. The individual stockholders not having paid in the amount of their stock, in said company by some ten thousand dollars. In consequence of which, the lien given the state, by the act of 1838, chapter 107, and sections 22 and 24, attached to the property levied upon in this case; and for this reason, we insist, that the same cannot be sold by an execution in favor of a creditor of said company, until the lien of the state is extinguished, by the payment of the stock. The State vs. The Lagrange and Memphis Rail Road, 4 Humphreys’Rep. 488.
    2d. If the creditors of the internal improvement companies are permitted to levy upon, and sell the property of the companies used and employed in repairing the same, it would follow, as a necessary consequence, that their gates would be thrown open, for want of repairs on the road, and thereby destroy their right to take toll, and with it, the lien of 1he state upon the same.
    3d. These complainants are trustees, to hold the property of this corporation, to satisfy, first, the lien of the State, and secondly the claims of the other creditors of the company, and if they were to permit the property of the company, to be appropriated to a different purpose, by the wrongful act of a creditor of the company, they would be liable to the state for such a breach of trust and being thus bound, to protect and secure the trust property, and to see that the same is applied according to the respective right of the parties, they had a right to file this bill. Savillevs. Tancred, 1 Vesey’sR. 101. Franco vs. Franco, 3 Vesey, Jr. 75, note to Story’s Eq. PI. 79, c. 4 Wash, c. c. 202; 2 Bar. & Har. Eq. Dig. 493 sec. 7; 2 Story’s Eq. sec. 1252, 1253.
    
      Nicholson, for the defendant.
   GREEN J.

delivered the opinion of the court.

The bill alleges, that the defendant had obtained judgment against the complainant, and had caused execution to be levied on several negroes, a wagon, and some mules, the property of the company, purchased with the profits of the road; and prays that the defendant be enjoined, on the ground that the state has a lien on said property, by the act of 1837, ch. 107, sec. 24, because the individual stockholders had not paid up for their stock.

The act referred to, secures to the state, a lien on the entire works of said companies respectively for the amount paid in by the state. It also provides that the rents, tolls and profits of the companies shall enure to the state until individual stockholders shall have paid their entire stock.

The property levied on in this case does not consist of the works of the company, nor . of material for the construction of the road; and therefore, is unlike the case of The State vs. Lagrange and Memphis rail road, 4 Hump. R., 448. The provision that the profits, rents, and tolls of the road shall, enure to the state, until the individual stockholders shall have paid their entire stock, is intended only as an exclusion of the stockholders from the receipt of dividends, until they shall pay in their entire stock, but is not a provision, in exclusion of the right of creditors, by a proper proceeding, from the application of these profits in extinguishment of their debts. But the property here levied on, is not embraced in either provision ol the 24th section of this law.

If, however, there were grounds for resisting the satisfaction of this execution, on the part of the state, there certainly are none on the part of the complainant; and the complainant has no right to maintain this bill on behalf of the state.

Affirm the decree.  