delivered the opinion of the court.
This case was begun in the chancery court upon the theory that appellant, the New Orleans, Mobile & Chicago Eailroad Company, was organized by the stockholders and bondholders of the Mobile, Jackson & Kansas City Eailroad Company for the purpose of acquiring the assets of the latter company.; that the organization of the New Orleans, Mobile '& Chicago Eailroad Company was in fact merely a reorganization of the Mobile, Jackson & Kansas City Eailroad Company; that, this being so, the new company was bound to pay the debts of the old company. It is alleged that the old company owed ap-pellees one hundred and thirty-nine dollars and sixty-six cents, and the prayer of the bill of complaint was for a decree for that amount against the new company. The case was tried upon an agreed statement of facts, and the court’granted the relief prayed for; wherefore this appeal.
The facts tend to show that appellant acquired the property through a foreclosure sale ordered by the United States courts of Mississippi and Alabama. This sale was ordered at the instance of the bondholders of the old company, and so far as we are able to discover the proceedings were regular, and there is nothing in the record which authorized the lower court to infer that the new company was merely the old company under another name. It is true that some of the recitals in the deeds conveying the property to appellant suggest a suspicion that the allegations of the bill of complaint may be true; but we do not think these suspicions rise to the dignity of proof, nor do they shift the burden of proof to appellant to establish its bona fide ownership of its property.
*6It appears that the property of the old company was sold by the decree of courts of competent jurisdiction to pay the mortgage indebtedness of the company; that the property was bought by an individual, and by mesne conveyances appellant has title to same. If the facts are as appellees charge, they may be entitled to relief; but the facts must be proven.
Reversed and remanded.
ON SUGGESTION OE ERROR.
At a former day of this term this case was reversed, for reasons stated in the opinion of the court. The case is again before ns on suggestion of error.
It is insisted that the chancery court was right in rendering a judgment against appellant because of section 4067, Code of 1906, which is in these words: “A mortgage or deed of trust conveying the income of future earnings or the rolling-stock of a railroad company shall not be valid against liabilities incurred by such company as a carrier of freight and passengers, or for damages sustained by persons or property.” We are urged to construe this section, and it is claimed that a failur'e to do so has led the court into an erroneous decision.
We have not regarded it necessary to take into consideration this section of the Code, for the reason that it in no way affects the case made by the pleadings and agueed statement of facts. The bill of complaint proceeds upon the theory that appellant railroad company is in fact the old company under another name, and a decree was asked and obtained against appellant, based upon a claim against the old company. We did not believe, and do not now believe, that the agreed facts support the allegations of the bill of complaint. There is no evidence to show that appellant is a reorganization of the old company, or that the old company and the new company are one and the same company, and unless this is true we cannot see how a judgment could be rendered against the present company for the debts of the defunct company.
*7Section 4067 of the Code needs no construction, and we have not attempted to construe same, for the simple reason that it does not come into play in this case. The rolling stock of the old company may he subjected to the payment of the debts of the old company, but the bill in this case does not seek to do this. The decree sought by the bill and rendered by the court is a simple judgment for so much money against appellant.
Suggestion of error overruled.