ROLLING STOCK. Rolling stock has been held in some cases to be a fixture, so far as to pass under a mortgage of the realty ; Eliz abethtown & P. R. Co. v. Elizabethtown, 12 Bush (Ky.) 233 ; Farmers' Loan & Trust Co. v. Ry. Co., 3 Dill. 412, Fed. Cas. No. 4, 669. Where essential to the operation of the road, it is held to pass under a mortgage of the railroad ; Morrill v. Noyes, 56 Me. 458, 96 Am. Dec. 486. A mortgage of a railroad afterwards to be built, and of the rolling stock appurtenant to such road, attaches to the rolling stock as soon as it is acquired ; Pennotk v. Coe, 23 How. (U. S.) 117, 16 L. Ed. 436 ; Scott v. R. Co., 6 Biss. 529, Fed. Cas. No. 12,527 ; Jones, Railr. Sec. 147. It is not essential that the rolling stock should be especially Mentioned in the mortgage ; general words are enough. For •instance, a mortgage of a line of a railroad "with all the revenue or tolls thereof" covers rolling stock ; State v. Ry. Co., 18 Md. 193. See also Mey er v. Johnston, 53 Ala. 237 ; Pullan v. R. Co., 4 Biss., 35, Fed. Cas. No. 11,461. See FUTURE ACQUIRED PROPERTY.
Rolling stock has been held to be subject to execution as a chattel ; Midland Ry. Co. v. Stevenson, 130 Ind. 97, 29 N. E. 385 ; and to attachment ; Hall v. Carney, 140 Mass. 131, 3 N. E. 14 ; so, when not in use; Bos ton, C. & M. R. v. Gilmore, 37 N. H. 410, 72 Am. Dec. 336 ; but where a company is in solvent or the equipment is mortgaged, it has been held not subject to execution ; Lou denschlager v. Benton, 3 Grant, Cas. (Pa.) 384. It is held that it may be sold for taxes as personal property, notwithstanding .a stat ute declaring it to be a fixture ; Chicago & N. W. Ry. Co. v. Ft. Howard, 21 Wis. 44, 91 Am. Dec. 458 ; and see Neilson, Benton & O'Donnell v. R. Co., 51 Ia. 714, 3 N. W. Trp. It is held to be a chattel in Williamson v. R. Co., 29 N. J. Eq. 311, 323. The better opinion said to be that it is personalty ; 3 Wood, Rys. 1961, citing Dubuque v. R. Co., 39 Ia. 56 ; Pacific R. Co. v. Cass Co., 53 Mo. 17; Hoyle v. R. Co., 54 N. Y. 315, 13 Am. Rep. 595; Boston, C. & M. R. v. Gilmore, 37 N. H. 410, 72 Am. Dec. 336.
Locomotive engines fit for use only in the construction work of railroads are not roll ing stock ; In re Ferguson Contracting Co., 183 Fed. 880.
It is held that a mortgage of rolling stock should be recorded as a chattel mortgage; Williamson v. R. Co., 29 N. J. Eq. 311; but it has also been held that chattel mortgage acts do not apply ; Hammock v. Loan & Trust Co., 105 Ti. S. 77, 26 L. Ed. 1111. The consti tutions of some states provide that rolling stock shall be considered personal property and shall be liable to execution and sale.
Of late years railroad companies have secur ed large quantities of rolling stock on defer red periodical payments, commonly known as the "car trust" plan. The contracts in some instances are drawn as leases from the build er or owner to the railroad company. In oth er cases they take the form of conditional sales. The earliest car trust was created in Pennsylvania in 1868. It is probable that the form of a lease or hiring of the cars, with a reservation of title in the former owner, was rendered necessary in that state because of the rule in that state (recently much modified, see SALES) that a reservation of title under a conditional sale of a chattel is void as against the vendee's creditors, when the ven dee is in possession. The weight of authority would seem to hold that such contracts, though drawn in the form of bailments, if the aggregate of all the installments is really the purchase price and the contract gives the "bailee" an option to purchase when all the payments have been made, are, in legal ef fect, conditional sales. It was said in Her vey v. Locomotive Works, 93 W. S. 664, 23 L. Ed. 1003, in holding such a contract to be a conditional sale: "Nor is the transaction changed by giving it the form of a lease. In determining the real character of a con tract, courts will always look to its purpose rather than to the name given it by the par ties." So in Whitcomb v. Woodworth, 54 Vt. 544, the "hire" of an organ was held to be a conditional sale. To the same effect is Heryford v. Davis, 102 U. S. 235, 26 L. Ed. 160. See Meyer v. Car Co., 102 U. S. 1, 26 L. Ed. 59, where the court considered it un necessary to decide the question., In Mc Gourkey v. Ry. Co., 146 U. S. 536, 13 Sup. Ct. 170, 36 L. Ed. 1079, where the cars were "leased" and payments, called rentals, were to be made of "lease warrants," with an op tion to buy for one dollar when they were all paid, it was held a bargain and sale with re tention of a lien in the vendor. In Ladley v. U. S. Expr. Co., 3 Super. Ct. (Pa.) 149, a "lease" or purchase on the installment plan was held to be a conditional sale. So of the sale of a clock upon weekly payments, the aggregate of which amounted to the price of the article ; Com. v. Harmel, 166 Pa. 89, 30 AU. 1036, 27 L. R. A. 388 ; but see Wheeler & Wilson Mfg. Co. v. Heil, 115 Pa. 487, 8 Atl. 616, 2 Am. St. Rep. 575. In Case v. L'Oeble, 84 Fed. 582, it was held that whether a contract for the sale of fixed ma chinery was a bailment or a conditional sale depended upon the intent of the parties. The contract there was held a bailment. See