(dissenting.) I cannot assent to one position taken by the court in this case, and that is that the first mortgage of the railroad company embraced and conveyed a title to land, the title to which the railroad company never acquired, and never had any right or interest in, except such right or interest as may have arisen from the fact that the company possessed and used the land for railroad purposes, in connection with the further fact that it was purchased with funds of the company.
In the descriptive part of the deed we find this language: —“And all the roadway and lands that are, or maybe, included-in the location of said railroad, or acquired by the said company for the purposes of said railroad, * * and property, real and personal, which now belong, or may at any time hereafter belong to said company, and be used as a part of said railroad, or be appurtenant thereto, or necessary for the construction, operation or security thereof.”
The language—“acquired by the said company,” or “ belong to ”—manifestly mean something more than the mere naked possession of the land. This is not apt and appropriate language to describe mere occupancy. As ordinarily used it clearly imports a title of some kind. If it does not mean that here it might have been entirely omitted, as the following clause clearly denotes a possession.
It is a startling proposition that a railroad company may insert in its mortgage such language, and that it carries to *163the bondholders any land which the company may at any time thereafter use rightfully or wrongfully for railroad purposes.
The charter authorized the company to secure its “ bonds by a mortgage of its railroad and all its property.” Yol. 6, Special Laws, p. 288. The language of the general statutes is the same. Rev. Statutes, 1866, p. 195, sec. 511. Thus the power conferred was limited in terms to its own property. If therefore the company had in so many words mortgaged all the real estate which it might at any time possess, leaving out the other qualifying words relating to title, such a provision would have been inoperative for want of power. Construing the language of the deed as applying only to property the title to which was at some time in the company, brings the deed within the power conferred. Construing it otherwise leaves the deed without authority; and giving effect to it as thus construed, establishes a principle directly in conflict with our recording system. It is the policy of that system that the title to all land, so far as possible, may be traced by the record. The record should show just what land the company owned and just what they mortgaged.
This mortgage was executed in May, 1869. At that time none of the land in controversy had been acquired; and when it was acquired the deeds were taken to Lyman and Coffin; so that the record shows no title in the company. The only way to show such a title and that the mortgage affected the land, is to show by parol possession and that the land was purchased with the funds of the company.
More than this, the mortgage deed shows no description whatever of the disputed premises. A description of the property conveyed is an essential requisite of a deed. 1 Swift’s Digest, 122. An authority however is hardly needed, because a deed without some description of the land would give no information, and a record of such a deed would be worthless.
Land which the company subsequently acquired appeared on the record, and, being aptly described or referred to as *164included in the premises conveyed by the deed, by force of the covenants therein contained, operating by way of an estoppel, vests at once in the trustee. But here there is no title in the company for the covenants in the mortgage deed to operate on.
Again. To give this deed such a construction and such an effect violates not only natural right but the constitution itself. If the land of Mr. Colegrove, or those represented by him, may be taken in this way, the land of any other man and of every other man on the line of the railway may be taken in the same way—may be taken by a mere trespass without compensation and without due process of law, which the constitution expressly prohibits.
Now I am fully aware that the majority of the court do not intend to establish a principle which will lead to such mischievous consequences. If the proposition should be submitted to them—Can a railroad company by the mere occupancy of land for railroad purposes take it from the proprietor and vest it in its mortgagees? they would unhesitatingly answer in the negative. But the serious question is, whether that is not the principle which lies at the foundation of the decision of this point.
The argument is that the company, having through its officers purchased all this land for railroad purposes, and having paid for it with its own funds, has an equitable title to the whole of it, and may use all or any part of it for railroad purposes, and that the part so used necessarily passed by the deed to the trustee and by the foreclosure and conveyance is now vested in the plaintiffs.
Allowing this argument all the force that can possibly be claimed for it, it meets only a part of the objections to which I have adverted. But I submit with deference that the argument is not sound and will not bear close inspection in respect to any one of them. A careful examination of the case will show this to be so.
The argument assumes that the company may take possession of the land at any time and that the effect claimed for it will follow regardless of intervening rights and equities *165acquired by others; an assumption that is wholly inadmissible. When the land was first acquired the company had an undoubted right to take for railroad purposes all that was required; but it could not take a part of it, cause the balance to be sold, and afterwards, in the exercise of the same right, take a part of that which was sold. Having made its election once, it may not make it again to the prejudice of third persons.
Colegrove advanced money to the company upon the credit of this land. On the 15th day of October, 1870, the company was owing him for money so advanced the sum of $14,500. At the same time it was owing Julius Hotchkiss $3,500. Lyman and Coffin on that day mortgaged the premises to Colegrove and Hotchkiss to secure those debts. On the 11th day of August, 1871, the directors approved of that mortgage. That mortgage covered all the land in the pieces described outside of the lay-out. On the 29th day of October, 1872, Coffin (Lyman then being dead,) conveyed the equity of redemption to Colegrove, describing all the land outside of the location of the railroad. That conveyance was authorized by a vote of the directors August 11th, 1871.
Thus the entire title, legal and equitable, passed from Coffin and the railroad company and vested in Colegrove, subject to such interest as Hotchkiss had. As Colegrove had then advanced, or did soon after advance, money enough to more than cover the full value of the land, which money the company had and used in the construction of its road, it is impossible for me to discover any flaw in his title or any want of equity.
In July, 1879, he conveyed the premises to Lucia C. Birdsey. How and when was he or his grantee deprived of that title ? It is not pretended that the money has ever been refunded; nor is it claimed that the company, the bondholders, or the present plaintiffs, ever acquired any right from Colegrove or Miss Birdsey. The only ground on which it is claimed that any title passed by the mortgage is an equity in the railroad company, which equity, it is *166claimed, is prior in time and in right to the equity of Colegrove.
I have already referred to this position, and said enough perhaps to show that it is not tenable; but as it lies at the foundation of the decision, I propose to examine it a little more in detail. When did the use which was necessary to give effect to the equity begin ? And when did the railroad mortgage first take effect upon the land? Certainly not when the mortgage was executed in May, 1869, for the land was not then purchased for the company. Presumptively that use had not commenced October 29th, 1872; for up to that time they were dealing with Colegrove as a purchaser upon the theory that the company had no further use for it. As the record is silent on the subject we have a right to presume that the company acted in good faith with Cole-grove and that the use did not commence until after October, 1872. The case then presents this state of things, and brings us to this strange result: In May, 1869, all the railroad property was mortgaged; afterwards the company acquired an interest of some kind in certain land outside of its lay-out; the company sold that interest for its full value, caused the land unincumbered to be conveyed to Colegrove, and used the avails in the construction of the road. The company then entered upon the same land and used it for railroad purposes, and now we are told that that use, because of an equity which once existed but which exists no longer, deprives the grantee of his title and transfers it to the mortgagees. I cannot assent to such a doctrine. I wish to be understood as protesting against it with all the vigor I can command. It will not do to say that the use commenced while the company had an interest in the land, for the record does not show it and we cannot presume it. The presumption is against it. The position of the majority is that it is not material when it commenced. The decision can be vindicated only by taking the broad ground that the effect is the same whenever it commenced. Otherwise they would have directed a finding upon that point.
But I go further. The company never had any interest, *167legal or equitable, in the land, as such, in dispute. I am not now speaking of the land included in the lay-out, for we all agree that the plaintiffs are now entitled to that ; but by the disputed premises I mean the land outside of the lay-out. The company was not authorized by its charter to acquire the land. Hence the deeds were taken to individuals. It is doubtful whether it had the power to acquire any_interest in the land as land. However that may be, it manifestly acquired no such interest. The right was a personal right against Lyman and Coffin—a right to have the lands sold and the avails paid over to the company to be used in- the construction of the road. It had the same interest in the land as such as a creditor of an insolvent or bankrupt estate has in land belonging to the estate—a right to have it sold and an interest in the avails—a right which from its nature cannot inhere in the land.
Upon every ground therefore I am satisfied that there is no equity which ought to prevail against the legal record title. More than this, the equitable title in its broadest sense is in Colegrove and his grantees.