delivered the following opinion :
I fully concur in the judgment of the court, and adopt the reasons given for the reversal of the chancellor’s order granting the injunction. I do not, however, concur in the expression op intimation of any opinion on the question of complainants’ lien.
The case presented by the record being an appeal from an interlocutory order, the judgment rendered settles all the questions properly presented for our decision.
It is true that the counsel on both sides elaborately argued the merits of the case before us, asking a decree under the provisions of the statute authorizing this court, in cases of appeal, to make such “ decree as the court below ought rto have given.”
*110The question, is here presented : Ought the chancellor t© shave given any final decree in this case ? I think not.
The complainants were not entitled to a decree on their xx parte testimony, filed for the purpose of securing the writ of injunction, which might possibly be explained or rebutted by defendants.
Neither could the bill have been dismissed, unless it failed to set forth any equitable claim. A denial in the answer of all the equities would net be sufficient to sustain such decree.
If, therefore, the condition of the ease was such that it did not become the duty of the chancellor to give a decree, this court would .ceriaiflalj exceed its powers in doing so. Taking this view .of the case, I do not consider it proper to express or intimate any opinion on the equitable lien claimed, which might possibly influence the chancellor in his decision or in .any way embarrass this court, should the question hereafter be properly presented for adjudication.
The following dissenting opinion was delivered by Judge PUTNAM:
I am unable to concur in opinion with the majority of the ‘Court.
The bill shows that appellees entered upon the portion of road belonging to the P. & G. R. R. Co., lying between the Live Oak station and the line dividing the States of Florida and Georgia in the month of April, ,1864, under a contract made between the Pensacola & Georgia It. It. Co. and the Confederate Government, by which the latter was to put the x’oad-bed over that portion of the line in “ fit and proper condition to x’eceive the track,” to place thereon the iron, for which, -as more fully appears by answer of the Pen. & Georgia It. It. Co., the Confederate Government was to have the use during the continuance of the then existing war, *111and at its close was to be paid therefo® by the Pen. & Ga. E. E. Co. if they could agree upon the value; failing in this, the Confederate Government was to remove the superstructure. The bill also alleges that appellees were placed in possession of said “ branch road with the lull knowledge of the P, & G. E. E. Co., and that they have, as professional railroad builders, expended in work and labor by them performed, and in materials by them provided and furnished, the sum of $37,379.60, in improvements upon said branch road, and for which they have not received compensation. The bill also alleges that at the close of the wav appellees were still in possession of said road; that they have never delivered possession thereof to the Confederate Government, but were dispossessed by the military forces of the United States. It also alleges that they have an equitable lien thereon for their compensation; that the P. & G. E. E. Co. has received substantial benefit from their said improvements, and have paid nothing for them, and are insolvent, having no other property out of which satisfaction for their demand can be made; and it further alleges that said company has disposed, or is about disposing of said branch road to the Atlantic & Gulf E. E. Co., a foreign corporation, for the purpose of defeating their lien, and prays- account, discovery, injunction and relief.
The. answer of the Pen. & Ga. E. E. Co. does not deny any of the material allegations of the bill, except notice, but sets up an alleged violation of the agreement on the part of the Confederate Government, and claims that the improvements were made by appellees for the Confederate Government and not for defendants. There is no pretence that the P. & G. E. E. Co. ever gave any notice to complainants of the breach aforesaid, or at any time notified them that the P. & G. E. E. Co. would not pay for their repairs and improvements.
*112. The answer also claims that this defendant was placed in possession of this portion of their road by the military forces of the United States.
The A. & G. B. B. Co. set up in their answer the illegality of the contract under which the repairs and improvements were made, and alleges that it is a purchase for valuable consideration without notice, and sets out an agreement under which it claims and admits it is a [foreign, corporation. The bill alleges that the A. & G. B. B. Co. had notice both of the repairs and iiftprovements, and of their lien.
In applying certain recognized principles of equity jurisprudence to the case, as thus presented by the record, the first question for consideration is, have appellees made a case which entitles them to an equitable lien for compensation? Second, the propriety, under the showing, of granting the injunction? Mr. Justice Story, in his excellent treatise on equity jurisprudence, sec. 1217, says: “there are Mens recognized in equity, whose existence is not known, or obligation enforced at law, and in respect to which courts of equity exercise a very large and salutary jurisdiction.” Again, in sec. 1236, “ the doctrine of contribution in equity is larger than at law,' and -in many cases repairs and improvements will be held to be, not merely a personal charge, but a lien upon the estate itself.” In section 1237, the same author says: “ Courts of equity: have not confined the doctrine of compensation, or lien, for repairs and improvements, to cases of agreement or joint purchasers, but have extended it to other cases, where the party making the repairs and improvements has acted bona fide and innocently, and there has been a substantial benefit conferx-ed on the owner, so that excequo et bono, he ought to pay for such benefit.”
Yiewing this case in the light. of the doctrine above laid down, the conclusioix is irresistible, that the appellees aré entitled to their equitable liexx for compensation as agaixxst *113the P. & Gf. E. E. Co. The company has been subs tarn tially benefited by the repairs and improvements placed upon its road by complainants, and for which they have paid nothing.
The answer of this defendant shows that the company had knowledge of the improvements being made, for it alleges a protest made :to the agent of the Confederate Government for an alleged violation of contract, yet the company gave no notice to complainants, nor did it forewarn them against proceeding with their work, but stood by and suffered the improvements to be made upon their property, whereby it is greatly enhanced in value. To permit the company thus to enrich itself at the expense of complainants, would be contrary to every principle of equity and justice.
The contract set up by the P. & Ga. E. E. Co. in their answer with the Confederate authorities under which these repairs and improvements were made by complainants, so far Implicates this defendant as privy thereto, as to attach the equities of complainants and to entitle them to an enforcement of their lien for compensation .out of the property in the hands of the P. &. G. E. E. Co.
Nor can I perceive that the answer of the defendants in any particular entitles them to any modification of these equitable doctrines in their application to this case. The Well settled principle, delido, estops them from making it available for their relief.
The agreement set up Was for repairs and improvements to be placed upon the property of one of the parties, the P-. ’& G. E. E. Co., to be compensated in part by use and enjoyment, the balance upon tbe happening of an event in money, by the owner, the P. & G. E. E. Co.
In the case of Woodward vs. Lively, 36 Pennsylvania State Eeports, 437, cited at bar, it Was held by the court 'that “ although, in one aspect an improvement lease, ñév*114ertheless, as to meoTicvmas and material men, to- be a contract for the erection of the buildings, payable partly in money and partly out of the profits ot the land, and the estate of the lessor is bound by the lien.” Here the lien was held to attach to the estate which had been enhanced in value by the improvements placed thereon, and I am unable to perceive any distinction in the cases which should change the rule there laid down in its application to the case at bar.
Whether the- defence set up by the A. & Gr. R. R. Co. can avail to relieve the property in their hands from the operation of the lien, is a question more properly to be considered on the final hearing of the cause. Without expressing an opinion as to the validity of the contract between the two defendants touching the sale or lease of the road, it is sufficient that the bill, answers and exhibits disclose such a state of facts as eminently to justify the chancellor in the court below in his action in holding the questions presented for further consideration when the case should be submitted upon the proofs.
Having thus disposed of the question of lien, it only remains to inquire whether, agreeably to the case made by the record,, the chancellor in the court below erred in gi’anting the ox-der from which an appeal has brought the case before this COUX’t.
This court, in the case of the city of Apalachicola vs. the Apalachicola Land Co., 9 Florida Reports, authorizes the chancellor*, on a xnotion for an injunction, to go into the consideration of the merits as disclosed in the bill and which are intrinsic and dependent upon its express allegations and chai’ges.
In the spirit of this decision, in a case where the answers of the defendants are filed, it would be the duty of the chancellor*, fox* the same purpose and to the same extent, to consider the merits of tJxe case as presented by the entire record. ?.
*115The case made by the bill, upon which the correctness of the action of the court below is to be tested, may be briefly stated as follows :
1. The bill alleges permanent repairs and improvements upon the property of one of the defendants, with notice, and without objection, by which that defendant has been essentially benefitted, and for which complainants have received no compensation, and asserts an equitable lien.
2. It alleges the pendency of a suit at law for the recovery of the demand; that the P. & G. P. P. Co. is insolvent and has no other property than that by complainants improved, out of which compensation can be had, and that unless their lien is enforced upon that specific property, they are without remedy.
8. It alleges an attempted disposition of the property to the other defendant, the A. ■& G. P. P. Co., a corporation having its existence without the jurisdiction of this court,' with notice of the existence of lien, for the purpose of defeating it.
4. That complainants are professional railroad contractors; that the repairs and improvements are of a character requiring mechanical experience and skill in their construction, and that they have never been legally dispossessed of their work upon said road.
The answer of the P. & G. P. P. Co. does not deny any of the material allegations of the bill, except the existence of the lien, and notice of the performance of the work by complainants, but sets up a breach of contract on the part of the Confederate Government, yet does not bring home to complainants notice of the alleged breach.
The answer of the A. & G. P. P. Co. sets up illegality of the contract, denies notice of the lien, and alleges that they are purchasers without notice and consideration paid, and makes exhibit of the contract under which they claim.
On application for injunction after answer, the court will *116look only to the facts that are responsive to the bill and will presume against defendant w’hen he has not answered what he ought to have answered, and will disregard new equities set up to avoid those set up by the bill. The P. & G. R. R. Co. does not deny the insolvency charged, nor that the repairs and improvements were made by complainants, nor that they had disposed of the property in controversy.
Insolvency has been held by this court a sufficient ground for granting an injunction.
Willard on Injunctions says, page 22, that an injunction may be granted where the defendants, against whom there is otherwise a good remedy at law, is insolvent or about to abscond. On page 100, the same author declares, “that it is not error to refuse to dissolve an injunction where the insolvency of a party, on whom the equity of the case largely depends, is charged positively upon knowledge and belief in the bill and positively denied in the answer.”
While the court will abstain from committing itself to points or questions which will arise on the final hearing, it will examine into them sufficiently to enable it to determine whether the injunction should be granted or refused. The court will then balance the facts as alleged by the respective parties to enable it to come to a correct conclusion. In doing this, if complainants have made a case showing a probaable dcmgev, the right may be defeated and an injunction may be granted. Read et al. vs. Dews et al., R. M. Charlton’s Repts., 356.
The present caséis much stronger. As against the P. & G, R. R. Co. there can be no question as to the propriety of the action of the court below in granting the injunction ; and in the .case .of the other defendant, the A. G. R. R. Co., it is equally clear to my mind that the facts justify the action of the .chancellor. I.t is a non-resident corporation, in possession of the property, using it to the detriment of complainants, holding by at least a questionable claim and withdrawing *117the earnings of the road from the jurisdiction of the court. The granting and continuing an injunction rests in the discretion of the court, to be governed by the nature of the case.
The order in this case is not inconsistent with the ease made by the record; and it seems carefully to guard the rights of all parties, with little or no hardship or injury to either. Nor do I perceive anything in the frame of the bill inconsistent with the rules of pleading or rendering it liable to the exception urged by appellants. I am, therefore, of the opinion that the injunction granted by the chancellor should not be dissolved.