Calhoun v. The Memphis & Paducah R. R. Co. ing obtained judgments against the railroad company levied executions on these town lots, and claim that as they are not included in the mortgage they should be sold and the proceeds be applied to the payment of their judgments. Metcalf & Walker, for petitioners. Gantt & Patterson, for defendants. HAMMOND, J.-It is insisted by the petitioners that the land in dispute is not within the description of the property conveyed, or if it can be so held, then, that the mortgage is inoperative because this land is not more particularly described, and was not then owned or in expectancy. However carefully we analyze the words and sentences used in describing the property conveyed, much may be said on either side, and there is no very clear indication either way, as to the actual intention of the parties in relation to land situated as this is and acquired as this was. It is not unusual for railroad companies to own lands not at all connected with the narrow strip occupied by the roadway and its appurtenances, and not unusual to include such lands in the mortgages. Neither can it be denied, that under a properly constructed instrument, lands of that character to be subsequently acquired may be included with the other property conveyed. But all mortgages of the kind, which have fallen under my observation, make some provision for utilizing the outside lands by their sale and the application of the proceeds to the purposes of the trust, generally to the construction or betterment of the road itself. The entire absence of any such provision in this mortgage, more than any other circumstance, inclines me to the belief that as a matter of fact, lands such as these were not in the contemplation of the parties. Besides, as to other property already included, Calhoun v. The Memphis & Paducah R. R. Co. there is no ambiguity whatever, and it is only when we are called upon to say whether this land was conveyed by the instrument, that it becomes perplexing in its uncertainty of description; yet, the expression "all other, the corporate property, real and personal, of said railroad company, whether heretofore acquired and now held, or owned, or hereafter to be acquired by the said railroad company," and, perhaps, other phrases in the description are broad enough in terms to cover this land. It is doubtful if the words, "belonging or appertaining to the said railroad," as used in connection. with this phrase, were intended to limit the general description to lands to be used in the railway, and appurtenant, as for depots, warehouses, structures, etc., because these had been already abundantly described with the description of the railway itself. The word "railroad," as used here, may mean railroad company, as it frequently does. Ordinarily, this general description would be controlled by the subsequent enumeration contained in the words "all depots, warehouses and structures." Pullan v. C. & C. R. Co., 4 Biss. 35, 43; 3 Wash. Real Prop., 400, 431. But when this rule of construction is relied on, it will be generally found that the particulars are introduced with a videlicet, or some such manifestation of the intention to restrain the general description. Bouv. Dict. words "videlicet," "scilicet;" and this ejusdem generis rule of construction always yields to the intention to be gathered from the context and general scope of the whole instrument. Williams v. Williams, 10 Yerg. 76; Edmonds v. Edmonds, 1 Tenn. Ch. 163. Here the particulars are introduced by the word "including," which does not indicate a restrictive intention, but rather the contrary. These particulars having been already more particularly described, may have been inserted out of abundant caution, and not for the purpose of confining the mortgage to the railway and its superstructure. The same uncertainty pre Calhoun v. The Memphis & Paducah R. R. Co. vails if we consider the other terms of this description, supposed to include this land. But, notwithstanding this, the general description is broader than in Dinsmore v. R. & M. R. Co., 12 Wis. 649, or that in Seymour v. C. & N. F. R. Co., 25 Barb. 284, and the case falls within the principle of these cases, and the case of Shamokin Valley R. Co. v. Livermore, 47 Penn. St. 465, all excluding lands situated like this, under mortgages very similar to the one under consideration. Walsh v. Barton, 24 Ohio St. 28; Parrish v. Wheeler, 22 N. Y. 494. A mortgage by a railroad company does not, by implication, cover property not essential to its business. 1 Jones' Mort. 156. In this case, while all other property is described with marvelous detail, this, if intended to be conveyed, is only described by doubtful general terms. It does not seem, from other provisions and from the whole instrument, to have been within the scope of the contract the parties were making. This point would be sufficient to decide the case, but inasmuch as it may be doubted, I have considered it on the assumption that the intention of the parties was to convey all lands not immediately connected with the railway, and appurtenant to it, then owned and subsequently to be acquired. Railroad mortgages have, on grounds of public policy, by a sort of eminent domain, somewhat trespassed upon some of the best assured doctrines of the common law; but the courts have not unconditionally surrendered to them all the principles which govern in determining the rights of property as between ordinary individuals. On the doctrine of accretion, it has been held that, without particular mention. of the property afterwards acquired, a mortgage by a railroad company will pass, under a general description, property subsequently acquired which is essential to its use, and may be fairly taken as a part and parcel of the thing which Calhoun v. The Memphis & Paducah R. R. Co. we call a railroad. 1 Jones' Mort. §§ 152, 161. But as to its other property, not regarded as accretions to the road itself, these mortgages are governed by the same rules as in other cases. The broad doctrine stated in Mitchell v. Winslow, 2 Story, 630, has come to be taken as quite an accurate statement of the principle, that after-acquired property may be the subject of a sale or mortgage; but, in its application, the courts have established that the general principle not only has exceptions, but in all cases must conform to the rules governing all contracts. It is said that, in relation to the sale of things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two classes, one of which may be sold, while the other can only be the subject of an agreement to sell-of an executory contract. Things not yet existing, which may be sold, are those which are said to have a potential existence-that is, things which are the natural product or expected increase of something already belonging to the owner. But he can only make a valid agreement to sell-not an actual sale-where the subject of the contract is something to be afterwards acquired. Wyatt v. Watkins, 1 Tenn. Leg. Rep. 148, 150; Benjamin on Sales, § 78; 2 Story's Eq. 1040, 1231; 1 Jones Mort., § 149; Everman v. Robb, 52 Miss. 654; Phelps v. Murray, 2 Tenn. Ch. 746; Looker v. Peckwell, 38 N. J. L. 253; Merrill v. Noyes, 56 Me. 458; Phila., W. & B. R. Co. v. Woelper, 64 Pa. St. 356; Ellett v. Butt, 1 Woods, 214; Ball v. White, 94 U. S. 382. In the application of this principle to railroad mortgages, it will be found that the courts sometimes refer them to one of these classes, and sometimes to the other, as the property is regarded as personal or real property. 1 Jones Mort., § 154, and cases cited; Pennock v. Coe, 23 How. 117; Whitewater Valley Co. v. Vallette, 21 How. 414, 422; Dunham v. R. Co., 1 Wall. 254, 267, 268; Shaw v. Bill, 95 U. S. Calhoun v. The Memphis & Paducah R. R. Co. 10; Pullan v. C. & C. R. Co., 3 Biss. 35; [S. C. 5 Biss. 237 and notes;] Phelps v. Murray, 2 Tenn. Ch. R. 753. It is said in this last case that a contract relating to realty was always enforceable in equity, and therefore a conveyance of realty, not the present property of the vendor, is good in equity. And all these cases show that there never was any difficulty in treating a contract to convey real estate to be subsequently acquired, as a mortgage of it, in all cases where the object was to secure a debt. We have already seen that after-acquired lands, not used in connection with the railroad, cannot pass under a general mortgage of the road itself, as a part of it, on the principle of accessions to it; and hence it follows that, as to this kind of property, the contract must be treated as an agreement to mortgage; and under the rule that a court of equity will treat that as one which is agreed to be done, it constitutes a lien upon the land specifically mentioned. It was held in Wilson v. Boyce, 92 U. S. 320, that a statute creating a lien upon "the road and property of the company" took effect to include lands disconnected with the road. It was said that a deed "of all my estate," or of "all my lands wherever situated," passed title. 1 Jones Mort., § 65; Reid v. Wilmington R. Co., 13 Wall. 264, 269. As to property already acquired, this description could be made certain by extraneous evidence, but it would be impossible by such a description, in conveying subsequently acquired lands, to designate them; and as against creditors the description must be reasonably certain, or it does not operate as notice. 1 Jones Mort., §§ 66, 528, and cases cited; Seymour v. C. & N. F. R. Co., supra; Dinsmore v. R. & M. R. Co., supra; Shamokin Valley R. Co. v. Livermore, supra. The principal of Wilson v. Boyce cannot be applied to lands not already owned at the time the deed was made, without wholly breaking down the rules of law which require |