purchasing committee organized a new company called the Wabash Railroad Company, to which they conveyed the railroad.

in Ohio, only made parties defendant those having a mortgage lien on the Ohio division. Compton was made a party to this cross bill as was also James F. Joy, as trustee under The new company was made a party below the second mortgage on the Ohio property. to contest Compton's lien and his right to a By some error, Joy, as an answer to the resale or redemption of the Ohio property, amended bill of complaint and the cross bills and is a party to this appeal to oppose the reof Humphreys and Lindley and of the Farm-versal or modification of the decree, claiming ers' Loan & Trust Company, filed the same to assert the rights of all mortgagees whose inanswer made by him in the Indiana suit, interests passed to the purchaser by the foreclowhich he only set up and asked to be protected sure proceeding. Because of the discussion of in his rights as substituted trustee in the mort- the effect of the decree for sale on Compton's gage of the Wabash & Western Railway Com-right, it is necessary to make a somewhat pany, and made no averment or prayer in re fuller reference to it. After finding the gard to the mortgage on the Ohio part of the amount due upon each mortgage and forerailroad in which he had also been substituted closing each mortgage in default of the as trustee in place of E. D Morgan, trustee. several payments directed to be made by Other answers were filed by parties defend- the mortgagors, the decree ordered a sale at ants, and the cause proceeded in the three dif- the city of Chicago, at which the mortgaged ferent courts in Ohio, Indiana, and Illinois as property should first be offered for sale sepa if the same questions were pending in each rately, as described in each of the divisional court, and the same issues were raised, without mortgages. It was further provided that there respect to the territorial jurisdiction of each should be deposited with the special master as court. Identically the same decree foreclos- security for each bid $100,000 in cash or in ing all the mortgages on all the railroad prop. bonds; that after such bids *had been made [11 erty east of the Mississippi river, divisional they should be accepted conditionally upon and otherwise, was entered in each district. the result of the offer of the entire railway as The decree was entered March 23, 1889. a unit; that, if the highest bid for the railroad Compton was not required to answer the bill as an entirety exceeded the sum of the highest and cross bills until April following, but in bids for the separate divisions, the entire propfact did answer March 28, 1889, so that when erty should be struck off to the highest bidder the decree for sale was passed the controversy for the entire road; that in such case the court over his claim was not at issue. This decree, would distribute to each division its share of though entered in the circuit court for the the unit bid in proportion to the separate bids northern district of Ohio, purports to foreclose received for the separate divisions, and that in divisional mortgages in Indiana and Illinois, case of a sale of the property as a unit the purand to order to a separate sale property with chaser must deposit in cash or in bonds $900, out the territorial jurisdiction of the court, al- 000 as a pledge that he would comply with his though there is no prayer for such relief, and bid. The provision with reference to the paythere is nothing in the decree intended to op- ment was as follows: erate upon the defendant mortgagor company to compel a conveyance of property in another jurisdiction. The decree provided that each division of the road covered by an underlying divisional mortgage should be offered separately, and then the whole road east of the Mississippi river should be offered as a unit. If the 10] sum offered *for the whole road exceeded the total of the separate bids the road was to be struck off to the one making the unit bid, and the share of each division in the amount of the unit bid was to be determined in the proportion of the separate bids. The decree provided that no bids should be received on the Obio bid which did not equal the sum due on both the Ohio divisional mortgages, and that no bid should be received on the Indiana division which did not equal the amount due on the first Indiana divisional mortgage. Under this decree, Joy and his associates, the purchasing committee in the previous fore closure proceedings, became the purchasers of the road on their unit bid of $15,500,000. This exceeded by several thousand dollars the sum total of the bids on the separate divisions of the road. The separate bid on the Ohio property amounted to $2,840,595.68, or a little The decree directed that upon the confirmamore than enough to pay the principal and in-tion of the sale by the court and the full pay. terest of the two divisional mortgages. The men of the entire purchase price, and the separate bid on the Indiana division was $3,- compliance by the purchaser with the condi650,000. This was about $1,300,000 less than tion of the sale and orders of the court in that would have been required to pay the second behalf, the special masters should convey the divisional mortgage on that division. The property by good and sufficient deed, to vest

"There shall be paid in cash, of the price at which the said mortgaged premises and property shall be sold, in addition to the amount which may be paid at the time of sale, such further sums thereafter of the purchase money as the court may direct. The remainder of such purchase price may be paid either in cash, or in bonds, with the overdue coupons thereto appertaining, at such proportion or value as the holders thereof would be entitled to receive thereon in case the said purchase price were paid by the purchasers in cash, and in all cases in which bonds shall be received by the said special masters, whether as a deposit at the time of said sale or sales, to bind the bids thereat, or in payment of the remainder of the purchase price at the time of the consummation of such sale or sales, the said bonds shall be so received at the rate or amount to which the holders thereof will be entitled to dividend thereon, and in case of the receipt of bonds for security at the time of sale, and said special masters shall at the time exercise their judgment in determining the probable amount of the dividend to which such bonds will be entitled.”

In the grantee "all the right, title, estate, in- | terest of said Compton shall proceed to a final terest, property, and equity of redemption ex-determination and decree in accordance with 12] cept as hereby *reserved of, in, and to all and singular the real estate, property, premises, and franchises therera described in fee simple forever, and shall entitle the grantees to the possession thereof."

All questions of account between the several different divisions of the railway as to earnings and expenses, as to payments made by the receivers on coupons or bonds secured by the mortgages upon the divisions, and all questions of the disposition of the proceeds arising from the sales under the decree, were reserved for future settlement and adjustment. The masters were required to pay the proceeds into court to remain subject to the further order of the court. The decree then proceeded:

"All other questions arising under any of the pleadings or proceedings herein not hereby disposed of or determined are hereby reserved for future adjudication; including the claim for unearned interest on bonds not yet due.

the rules and practice of this court, and any decree rendered thereupon shall bind the purchaser or purchasers at any sale or sales had hereunder, and all persons and corporations deriving any title to or interest in the said property affected by such lien from or through them, or any of them, and nothing in this decree contained shall be construed as an adjudication of any matter or thing as against the said James Compton, or to prejudice, annul, or abridge any right, claim, or interest or lien which the said James Compton may have in in, to, or upon the premises hereby directed to be sold, or any part thereof, or in, to, or upon any property whatsoever embraced in this decree; it being the intention to hereby preserve the rights of said Compton in the relation in which he now stands towards the mortgagees parties hereto.

"Any sale, conveyance, or assignment of the railway and property hereinabove described, "And the defendant James Compton having made under this decree, shall not have the effect in open court on the final hearing herein ob- of discharging any part of said property from jected to the rendering or entry of any decree the payment or contribution to the payment of in this cause at this time on the ground that claims *or demands chargeable against the [14 the issue raised by the amendment to the com- same, whether for costs and expenses, the explainants' amended and supplemental ancillary penses of the receivership of said property and bill and to the cross bill of the cross complain- the full payment of all the debts and liabilants Solon Humphreys and Daniel A. Lindley,ities of the receivers of the Wabash, St. trustees, and the answers of the defendant Louis, & Pacific Railway Company, namely, James Compton to be filed herein have not been tried and determined, the court overruled such objection, and the defendant James Compton duly excepts to such ruling and the entry of this decree. But it is adjudged and decreed in the premises that the rendering and entry of this decree in advance of the trial and determination of such issues is upon and subject to the following conditions, to wit:

"If upon the determination of such issues it shall be adjudged by this court that the decree rendered by the supreme court of the state of Ohio, in the suit brought by said James Compton against the Wabash, St. Louis, & Pacific Railway Company and others, referred to in the pleading herein and the lien thereby declared and adjudicated in his favor, continue In full force and effect, then the purchaser or purchasers at any sale or sales had hereunder 13]*of that portion of the property sold, covered and affected by said lien, or the successors in the title of said purchaser or purchasers, shall pay to said James Compton or his solicitors herein within ten days after the entry of the decree herein in favor of said James Compton the sum of $339,920.40, with interest thereon at 6 per cent per annum from May 1. 1888, being the amount found due on the equipment bonds by him owned, by the supreme court of Ohio, in his said suit, upon the surrender by him of the bonds and coupons owned by him, referred to in his petition in such suit; and in default of such payment this court shall resume possession of the property covered and affected by the said lien of the defendant James Compton, and enforce such decree as it may render herein in his favor by a resale of such property or otherwise as this court may direct.

"And it is further ordered and adjudged, that notwithstanding the entry of this decree the said issues concerning the claim and in

Solon Humphreys and Thomas E. Tutt, Thomas M. Cooley and General John McNulta, or upon intervening claims and allowances that have been or may hereafter be charged against the property of the Wabash, St. Louis, & Pacific Railway Company or any part thereof, or said receiver or either of them, or the adjustment of any equities arising out of the same between the parties thereto, or their successors, either by this court or by the circuit court of the United States for the eastern district of Missouri, or by any United States circuit court exercising either original or ancillary jurisdiction over said property of the Wabash, St. Louis, & Pacific Railway Company, or any part thereof, or by any United States circuit court to which any of the parties in the consolidated cause of the Central Trust Company of New York and others against the Wabash, St. Louis, & Pacific Railway Company and others in the circuit court of the United States for the eastern district of Missouri, including the receivers, have been by said circuit court of the United States remitted in proceedings or actions ancillary to the jurisdiction of said last-named court or otherwise.

"Nor shall any such sale, conveyance, transfer, or assignment made under and pursuant to this decree withdraw any of said railroad property or interests to be sold under this decree as herein before directed from the jurisdiction of this and the other courts aforesaid, but the same shall remain in the custody of the receiver until such time as the court shall on motion direct said property in whole or from time to time in part to be released to the purchaser or purchasers thereof or any of them, and shall afterwards be subject to be retaken, and, if necessary, resold if the sum so charged or to be charged against said property

"The provision aforesaid shall apply to the purchasers of the same under this decree, and all persons taking said property through or under them, but the foregoing provisions shall not nor shall any reservation of this decree contained have the effect or be construed, nor are they or any of them intended, to give any claims that may exist any validity, character, or status superior to what they now have, nor to decide or imply that any such claims exist. "The effect of said provisions and reservations shall be to prevent this decree operat- On August 17, 1889, the court ordered "that ing as an additional defense to claims, if any the issues *presented in this cause as to the [17 there are, prior in right to the liens of the lien and claim of James Compton, made by the mortgages upon said property heretofore and various pleadings herein, upon and concerning hereby foreclosed, and to preserve the prior said claim and lien, and reserved in the former right and lien of such claims and all allow-decree herein, saving the rights of said Compances if found and decreed to exist."

000. The property covered by that mortgage | Railroad Company gave a second mortgage to was described as follows, viz.: E. D. Morgan, trustee, for $1.000.000, in which the description of the property conveyed is the same as above, as is also the habendum clause. The true intent and meaning of this mortgage are declared to be as follows:

"Their road made and to be made, includ ing the right of way and the land occupied thereby, together with the superstructure and tracks thereon, and all rails and other materials 18]*and machinery used thereon or procured therefor, including the furniture and equipments of the road and those to be purchased or paid for with the above-described bonds, and the bridges, viaducts, culverts, fences, depot grounds, and buildings erected or to be erected thereon, and all franchises, rights, or privileges of the said party of the first part of, in, to or concerning the same." Printed Record. p. 120.

The habendum clause is: "To have and to hold the said premises and every part thereof, with the appurtenances unto the same party of the second part.'

In June, 1856, the Toledo & Illinois Railroad Company entered into an agreement of consolidation with the Lake Erie, Wabash, & St. Louis Railroad Company, and the Toledo, Wabash, & Western Railroad Company was thereby formed. That agreement provided that all mortgages given by either of the parties shall be as valid and binding upon the whole of the road, real estate, fixtures, and personal property which may be described in such mortgage as though the same had been originally executed by such consolidated corporation.'

First. That this mortgage attaches to the property above described as subject to and subordinate to said bonds of the Toledo & Illinois Railroad Company, or said issue of $900,000, whether evidenced by said bond of the party of the first part, made to Edwin D. Morgan, trustee, etc.

Second. That the party of the first part, oi any railroad company into which it may become a component part by consolidation, shall be chargeable with said sum of $900,000, as a prior lien and encumbrance to any other debt thereon.

The Toledo & Wabash Railroad Company of Ohio, soon after executing the foregoing mortgages, entered into articles of consolidation with the Wabash & Western Railway Company, an Indiana corporation, thereby forming the Toledo & Wabash Railway Com pany. It was provided in that agreement that all mortgages given by either of the parties "shall be as valid and binding upon the whole of the road, real estate, fixtures, and personal property which may be described in such mortgage as though the same had been origi. nally executed by such consolidated corporation."

The Toledo, Wabash, & Western Railroad Company made a mortgage which was subse- *This company took possession of the [20 quently foreclosed By the decree of sale the property and operated it. Later it acquired cer purchaser of the Ohio part, Boody, took sub-tain terminal property in Toledo. It issued ject to the first mortgage. Boody conveyed the equipment bonds. It made no mortgage the Ohio division to a new Ohio corporation, at any time. organized with power to construct, maintain, In 1865 the Toledo & Wabash Railway and operate a road from Toledo to the Indiana Company and various Illinois companies enstate line, and called the Toledo & Wabash tered into an agreement of consolidation, Railroad Company. This company on Octo- whereby the Toledo, Wabash, & Western Railber 12, 1858, gave a bond to Edwin D. Mor-way Company was formed. It was this agreegan, trustee, for $900,000, and secured it by ment which created the lien in favor of the mortgage of its railroad, made and to be made; equipment bonds which was adjudicated in all right of way and all lands occupied thereby, Compton's suit. together with the superstructure, depots, Another issue raised by the bill and cross depot grounds, and buildings erected thereon, bills and Compton's answers was the effect of and the rails, tracks, side tracks, bridges, a decree of United States circuit court of Infences, viaducts, culverts, rights, privileges, diana denying the existence of a lien in favor franchises, and accessions of the party of the of equipment bonds of the same issue as those first part, together with all its rolling stock, held by Compton, upon the Ohio decree in machinery, furniture, and equipments of its Compton's favor. It was contended by com. said road now and hereafter to be acquired, plainant below that Compton was a party to being the same property described in the deed the Indiana decree, and was thereby estopped of Matthew Johnson, marshal and commis-to plead the Ohio decree. The master and 19] sioner, to A. Boody, *Esq., and dated October 8, 1858, and A. Boody conveyed to the party of the first part.

The habendum clause was "To have and to hold the premises and every part and parcel thereof, and all its increase, accessions, and incidents unto the said Morgan and his successors," etc.

the court below decided in Compton's favor on this point. The facts in respect to this issue were as follows: In 1878 one Tysen brought suit on behalf of himself and such other owners of equipment bonds of this issue as might desire to come into said suit and contribute to the expense thereof, to establish that the bonds entitled their owners to a lien on The condition of the mortgage and bond was the part of the Wabash main line extending that the Toledo & Wabash Railroad Company from Toledo to the Illinois state line. The would pay the $900,000 of bonds issued cause was removed to the Federal circuit by the Toledo & Illinois Railroad Company court and resulted in a decree sustaining and secured by the first mortgage. The mort- the lien. Wabash, St. L. & P. R. Co. v. gage recites that it is executed for the benefit Ham, 114 U. S. 587 [29: 235], 15 Fed. Rep. of the bondholders under the first mortgage. 763. It was appealed to the Supreme Court On October 15, 1858, the Toledo & Wabash of the United States, the decres of the lower

court was reversed and the bill of complaint the same, being all of its railroad and property was dismissed. To this action Compton never connected therewith, commencing in the city became a party. When he began his suit the of Toledo in the state of Ohio and extending Indiana action had been discontinued. It was therefrom through the counties of Lucas, subsequently revived, however, and then for Henry, Fulton, Defiance, and Paulding in said the first time a lien was asserted under the state, and through the counties of Allen, Huntconsolidation statutes. Compton's counselington, Wabash, Miami, Cass, Carroll, Tippe did file a brief in the supreme court, but he canoe, Fountain, and Warren in the state of paid no part of the expense of the suit. Indiana, to and terminating at a point in the In 1880, pending the suit in the Indians court, west line of State Line City in said last-named 21] but prior to the rendition of the Indiana county, and that said bonds are now a lien on decree, Compton began a suit in the common such railroad and property, and the plaintiff in pleas court of Lucas county to establish and en- entitled to enforce the same. That the said force a lien on the railroad extending from lien of said bonds is prior and superior to the Toledo to the Illinois state line by virtue of rights, interests, estates, claims, and liens of his ownership of $150,000 of the par value of the defendants in this action and each of them, these equipment bonds. Compton made parin and upon said railroad and property upon ties to this suit all the railway companies suc- which said lien is hereby declared, and is prior ceeding the Toledo & Wabash Railway Com- and superior to the rights, interests, estates, pany (which issued the equipment bonds) in claims, and liens of all persons and corporations the ownership of the property and all the who have derived any such rights, estates, mortgagees whose mortgages were executed, claims, and liens from, by, or through the said after the issuance of the bonds, except the defendants, or any of them, since the comCentral Trust Company and Cheney, trustees, mencement of this action or otherwise; but as who took their mortgage pending the appeal to all that part of said railroad and property from the common pleas decree. Neither the which is situate within the state of Ohio, such Farmer's Loan & Trust Company nor E. D. lien is inferior and subject, but inferior and Morgan, trustees of the underlying Ohio di-subject only to the two mortgages mentioned visional mortgages, were parties. in the petition herein, one of which was exeIn March, 1882, the common pleas court en-cuted by the Toledo & Illinois Railroad Comtered a decree sustaining the lien claimed, and ordered a sale of the part of the railroad in Ohio to pay the amount of the bonds found due, subject to the prior lien of the mortgages of the Farmers' Loan & Trust Company and E. D. Morgan, trustee, on the same prop-cent per annum, payable semi-annually on the erty. The cause was appealed to the district court of the proper judicial district and by that court reversed for decision to the supreme court of the state, which in 1888 sustained the rulings of the common pleas court (Compton v. Wabash, St. L. & P. R. Co. 45 Ohio St. 592), found that the amount due on Compton's bouds was $339,920.40 with interest from May 1, 1888, and that this amount was a lien on the railroad in Ohio and Indiana, and or dered that on default in the payment of the amount due after ten days the Ohio part of the road should be sold to enforce the lien.

The finding and action of the supreme court of Ohio sufficiently appeared from the 5th and 6th paragraphs of its decree as follows:

That upon the consummation of such consolidation, said bonds issued as aforesaid by the Toledo & Wabash Railway Company, known as equipment bonds, and all moneys due and to grow due thereon, and among them such of said bonds as are now owned, as aforesaid, by the plaintiff, and the moneys due and to grow due thereon, became an equit22]able *lien upon all of the said railroad and real property and the structures thereupon, and the fixtures and appurtenances thereto appertaining, which were owned by said Toledo & Wabash Railway Company at the time of said consolidation, and which through said consolidation passed to and vested in the said Toledo, Wabash, & Western Railway Com pany, and which afterwards passed to and vested in the defendant, the Wabash, St. Louis, & Pacific Railway Company, which last named company was, at the time of the commencement of this suit, in possession of

pany to the Farmers' Loan & Trust Company on the 8th day of September, 1853, for the security of the bonds of that company, amounting to $900,000, due as extended August 1, 1890, and bearing interest at the rate of 7 per

1st day of February and August in each year, and the other of which was executed by [23 the Toledo & Wabash Railroad Company to Edwin D. Morgan, trustee, on the 5th day of October, 1858, for the security of the bonds of that company, amounting to $1,000,000, due on the 1st of November, 1878, and bearing interest at the rate of 7 per cent per annum, pay. able semi-annually on the 1st day of May and November in each year.

"6. That the said defendants or any of them pay to said plaintiff the said sum of $339,820.40 now due on said bonds owned by the plaintiff as aforesaid within ten days from the entry of this decree, and if default shall be made in such payment that an order of sale issue for the sale as upon execution at law of all said railroad and real property, together with the structures thereupon, and the fixtures and ap purtenances thereto appertaining, upon which the lien of said bonds, known as equipment bonds, is hereby declared to exist, which is situated in the state of Ohio and the jurisdic tion of this court, subject, however, but subject only to the lien of the two mortgages herein before mentioned as executed by the Toledo & Illinois Railroad Company to the Farmers' Loan & Trust Company and the Toledo & Wabash Railroad Company to Edwin D. Morgan, and to the indebtedness secured by each of said mortgages, and that from the proceeds such sale the costs of this action as taxe to be paid, and the residue of such proceeds be ught into court to abide its further order herein on the footing of this decree. That before offering the property hereby directed to be sold, for sale, the officer