The opinion of the Court was delivered by

We held in Gillison vs. Railroad that where a'railroad company authorized to acquire lands by an Act authorizing the appointment of Commissioners to appraise such lands, and declaring that “ the lands and right of way so valued by the Commissioners shall vest in the said company in fee simple as soon as the valuation thereof may be paid or tendered and refused,” proceeds in the manner pointed out by the statute and obtains an appraisal, and takes possession under such appraisal, but without paying the amount of such appraisal, the interest acquired by the company under such transactions is'bound for the payment of such appraised value. We held that such company is to be regarded as if in possession of lands under a contract to purchase the same without having paid the purchase money. In this case the fee of the lands remains in the original owner, subject to the contract and right of possession under it.

We also held that a purchaser from the company of its property and franchises, succeeding it in the possession of the land, takes it subject to such obligation. It follows, applying these rules to the present case, that the fee remained in T. W. Gillison, the former *329proprietor, and at his death passed to his distributees by operation of law, who are entitled to receive the appraised value of the land. It is alleged that T. W. Gillison left a will appointing the plaintiff his executor, but it is not alleged that he made any disposition by his will of his real estate, or gave his executor any control over his land. Under these circumstances the executor shows no title to this money due according to the appraisal.

The fact that judgment was entered upon such appraisal cannot affect the right of the executor to sue. Assuming that such a judgment could be obtained, it would not affect the right of the heirs, or the devisees, should there have been a devisee of the lands by the will, to claim the benefit of it; for it would be regarded in equity as a security for the money, and would follow the right to demand such money.

The judgment should be set aside and the complaint dismissed.