[Syllabus from pages 81-82 intentionally omitted]
Statement by Mr. Chief Justice FULLER:
This was an action commenced by T. R. Johnson in the district court of Marion county, Tex., September 14, 1888, against John C. Brown, and amended December 17, 1888, by making the Texas & Pacific Railway Company a party defendant. On January 14, 1889, plaintiff filed his first original amended petition against said defendants, wherein it was alleged that the defendant Brown was on December 15, 1885, duly appointed by the circuit court of the United States for the eastern district of Louisiana receiver of the Texas & Pacific Railway Company and all of its property in the states of Texas and Louisiana; that he qualified as such receiver December 16, 1885, and entered upon and exercised and performed his duties as such from that date until October 31, 1888, inclusive; and that during that time he operated and managed the property of the defendant corporation in all its parts in said states as a common carrier of freight and passengers, and into and through certain enumerated counties of the state of Texas. The petition, after stating the circumstances of the accident, and the ground of liability in that respect, further averred that the receiver was discharged by the court appointing him, October 31, 1888, under an order of October 26, 1888, and that he delivered to the railway company all of its property, consisting of the corpus of said railway, and all the earnings and income then in his hands as receiver, unexpended, and all the lands belonging thereto, and all improvements and betterments which had been added to the property by him.
The provisions of this order requiring that the property should be so delivered subject to the liabilities of the receiver were specifically alleged, and their legal effect, and that of the acceptance of the property, averred; and it was further stated that under the laws of the state plaintiff was entitled to a lien on the property for the satisfaction of his claim. Reference was also made to an order of May 31, 1888, relating to the termination of the receivership June 1, 1888, and averring that after that date the road was continuously operated by the company.
The plaintiff further alleged that the receiver was originally appointed at the instigation and by the consent of the railway company, and for its benefit; and that the property in his hands from December 16, 1885, to June 1, 1888, inclusive, was operated and managed by him for the benefit of the defendant company and its property as originally intended; and that the property on June 1, 1888, was redelivered to the defendant corporation, greatly improved in valuc, without any sale or foreclosure, and without any third parties acquiring any title thereto or interest therein of any kind. It was finally averred that 'the said Brown, as receiver, and under orders and direction of said court and by consent of all parties interested, including defendant company, during the time above mentioned applied all the receipts, earnings, and income of said railway under said receivership, after the payment of current expenses, to the permanent improvement of said property to the betterment thereof, and to the purchase of large and valuable additional property for the use and operation of said road, amounting in the aggregate to the sum of three million dollars, all of which money and property is now in the possession of the defendant company as its own, and under the conditions heretofore set out. Wherefore the plaintiff brings this suit, and prays for citation to defendants according to law; and on final trial for judgment against the defendant John C. Brown, simply establishing the claim of plaintiff against the receivership under his management, and against the Texas and Pacific Railway Company for his damages, fifty thousand dollars, and to fix upon the said property of the said defendant company in the state of Texas a lien to satisfy the judgment rendered herein, for costs, and such other relief as plaintiff may be entitled in law or in equity.'