(dissenting.) It seems to me that the reversal is for reasons more technical than substantial.
As pointed out 'in the opinion of the majority, the appellees preserved their claim to a prior lien by filing suit within a year, •as required by the statute'. The railroad going out of business and into receivers’ hands prevented service being obtained, but the filing of the suit, making the receivers parties thereto, gave notice to the receivers and record notice to the purchasers of the assertion of the lien. The agreed statement of facts herein admits that the defunct company was liable to appellees for the amounts sued for. That admission, and the preservation of the lien by suit within the year answers all the purposes of a judgment. If the suits had progressed to judgment, the validity of the claim could not have been more thoroughly established than by the admission of their validity. Such claims are prior to the rights of mortgagees, and purchasers at foreclosure sales of railroads take subject to all prior liens. The purchasing company, this appellant, took subject to all liens of which it had notice, and of which by law it was required to take notice, and the property it took over from the old company is burdened with these claims. It seems that a direct suit against the purchasing company is a proper way to reach the liability. Of course, it is only liable to the extent of the property it took over; but that question could hardly arise over a few hogs and a mule or two.
Moreover, it seems to me that section 6587, Kirby’s Digest, is applicable. The purchaser at foreclosure sale takes, of course, freed of general debts and junior liens, but always subject to liens paramount to the mortgage lien.
It would be a fair and reasonable construction of this statute to apply it to foreclosure sales, as well as voluntary sales, with this difference only: The assumption of debts by the purchasing company at foreclosure sale is only of tljose debts which are prior liens to the mortgage foreclosed, while at voluntary sales it is an assumption of all debts.
The decision herein practically amounts to putting appellees out one door, and inviting them back in another; and while I recognize the technical difficulties in the case, none of them seem sufficiently substantial to call for a reversal.