Opinion of the Court.

that decree; (3) that, in the decree of July 8, 1886, rendered upon such supplemental bill, 17 bonds issued under the mortgage of 1870, which had never been exchanged, were provided for as valid liens under that mortgage, and under that alone; (4) that the bonds held by the Mercantile Trust Company, as trustee, which had been.exchanged for the prior bonds, were also recognized as claims secured by such mortgage; (5) that in such decree no mention was made of the mortgage of 1881, except by way of recital, and as part of the history of the case; (6) that the sale ordered was a sale in pursuance of the prior decree; (7) that in the master's deed to Jesup and Thatcher, and in their deed to the Keokuk and Western Railroad Company, no allusion whatever was made to the mortgage of 1881.

There was, it is true, a proviso in the last decree that, by way of a more ample protection to the purchasers, the defendants, the Missouri, Iowa and Nebraska Railway Company, the Humeston and Shenandoah Railway Company, and the Mercantile Trust Company should execute deeds of the property to the purchasers, and that in pursuance of such order the deeds of 1890 were executed. But it is clear that nothing in fact passed by such deeds, since the deeds of the master to Jesup and Thatcher, and their deed to the Keokuk and Western Railroad Company had already conveyed all the interests of the defendants to the property in question.

The truth is that in these proceedings the mortgage of 1881 was treated as an abandoned security, and was practically ignored in the foreclosure proceedings which culminated in the sale of the road. The deeds of 1890 were evidently an afterthought for the purpose of procuring some kind of title under the mortgage of 1881, and of meeting the decision of the court sustaining the demurrer to the original bill of revivor.

(2) Plaintiff, however, makes a further claim that, under the law of Missouri for the taxation of railroads, the property and all interests therein are taxed as a whole to the company and no one else, and that proceedings against the company by suit or otherwise will divest the mortgagees of their rights

Opinion of the Court.

as well as the company itself, notwithstanding they are not made parties to the proceedings; that the bondholders or their trustees are privies to such tax proceedings at law, and that inasmuch as the Secor suit was a bill in equity to prevent a multiplicity of tax suits, which would become necessary in the various years in which the tax was to be collected, during the limited exemption, it follows that if the railroad company becomes the legal representative of the bondholders, or their trustee in the tax suit at law, the same would be true in a proceeding in equity to enjoin such taxes.

Granting the general principles above stated to be correct, that a lien for taxes upon the property is a lien upon all the interests in such property, and that proceedings to enforce such lien will oust the mortgagees of their lien, we do not think the latter part of the proposition follows, that these bondholders or their trustees were privies to the suit in equity to enjoin such taxes. Indeed, it is difficult to see how the fact that the mortgagees would be bound in a proceeding by the State to enforce its lien for taxes would have any bearing upon the point in controversy. The bill sought to be revived is a bill to enjoin the taxes for 1879 and prior years, and the question was whether the plaintiff was entitled to the benefit of the decree in that case. This depended, not upon the question whether the lien of the State for taxes overrode the mortgagees' lien, but whether under the settled principles of law the purchaser under the mortgage is entitled to the benefit of an estoppel under a decree obtained in a suit begun after the execution of his mortgage. We hold that it would not have been estopped by that decree, if such decree had been adverse to Secor in that suit, and hence as estoppels must be mutual, it cannot claim the benefit of an estoppel in this case. The Secor bill was a bill to enjoin the collection of taxes for certain years; if the court had decided that the plaintiffs were not entitled to such injunction, but that the taxes were valid, we know of no reason why the Keokuk and Western Railroad Company would thereby be estopped to maintain a bill of its own for the same purpose, as it derived its title to the property in question from a mortgage long antecedent to the com

Opinion of the Court.

mencement of the suit by Secor. This seems to have been the view taken by the Supreme Court of Missouri in Stafford v. Fizer, 82 Missouri, 393, in which that court held that although the lien of the State for taxes ranks all other liens whether prior or subsequent, yet in a suit to enforce such lien, the holder of a junior incumbrance must be made a party, if it is desired to divest him of his rights; otherwise he will be entitled to redeem from the purchaser under the tax lien. See also Gitchell v. Kreidler, 84 Missouri, 472.

The decree of the court below was correct, and it is, therefore,

Affirmed.

DOWELL v. APPLEGATE.

ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.

No. 209. Argued January 18, 1894. - Decided March 5, 1894.

A final decree of a Federal court, being unmodified and unreversed, cannot be treated as a nullity when assailed collaterally by one who was a party to the suit in which it was rendered.

In a suit by A to subject lands of B to sale in satisfaction of his claims, a decree in the complainant's favor is final, if not appealed from, and B cannot have the same issue retried in an independent suit, based upon a title which he might have set up in the first suit, but did not. When the Supreme Court of a State fails to give proper effect to a decree of a Circuit Court of the United States, this court has jurisdiction over its judgment to correct the error,

THE case is stated in the opinion.

Mr. B. F. Dowell and Mr. John H. Mitchell for plaintiff in

error.

Mr. J. N. Dolph for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case involves the title to a tract of land in Douglas County, Oregon, containing forty acres, part of what is known

Opinion of the Court.

as the donation land claim of Jesse Applegate, number thirtyeight, in township twenty-two south, of range five west of the Willamette meridian.

The defendant in error, Daniel W. Applegate, holds under a deed executed to him by William H. H. Applegate and wife, dated October 8, 1874, and recorded October 31, 1874. He brought this suit in the Circuit Court of Douglas County, Oregon, to obtain a decree removing the cloud upon his alleged title created by a deed made to the defendant Dowell by a master in chancery, pursuant to an order of the Circuit Court of the United States for the District of Oregon, in a suit determined by that court in which Dowell was plaintiff and Daniel W. Applegate was one of the defendants. At a sale held in conformity with the final decree in that suit, Dowell became the purchaser of the land in question. That sale was duly confirmed, and a deed executed to him. From that decree of sale no appeal was taken.

Dowell bases his claim to the land upon the decree and orders in the above suit in the Circuit Court of the United States; and the controlling question before this court is as to the effect of that suit.

The state court did not give to the decree and orders in the Federal court the effect claimed for them; and it is necessary to a clear understanding of the grounds upon which it refused to do so, that we ascertain the precise nature of the proceedings in the latter court.

From the recitals in a supplemental bill filed by Dowell in the suit in the Federal court, it appears that that suit was commenced on the 11th day of October, 1879, in the Circuit Court of Douglas County, Oregon, and was subsequently removed into the Circuit Court of the United States for the District of Oregon. Upon whose application, or upon what grounds, it was so removed, the record before us does not clearly show. But it does appear that Dowell, on the 6th day of April, 1881, in order to conform his pleadings to the practice in the courts of the United States, sitting in equity, filed a bill in the Federal court disclosing the grounds of his suit. The defendants were Jesse Applegate, and his wife.

Opinion of the Court.

Cynthia Ann Applegate, William H. H. Applegate, Daniel W. Applegate, Peter Applegate, Sallie Long, John C. Drain, Jonas Ellensberg, and Charles Putnam.

The bill filed by Dowell made the following case: In a suit brought on the official bond of one May, Secretary of State of Oregon, executed September 6, 1862, his sureties being Jesse Applegate, O. Jacobs, and James Kilgore, -- judgment was entered, June 24, 1874, in favor of the State for the sum of $1622.50, and the costs, expenses, and disbursements of the action. That judgment was unsatisfied in whole or in part when Dowell brought his suit.

On the 4th day of August, 1874, in a suit instituted in the Circuit Court of Marion County, Oregon, against Dowell and Jesse Applegate, who were sureties on the official bond of May, dated August 4, 1866, for another term of the office of Secretary of State, the State recovered judgment for the sum of $8929.85, together with the costs, expenses, and disbursements of the action. That judgment was duly entered August 11, 1877, on the judgment-lien docket of Douglas County. Prior to June 27, 1878, Dowell paid on it the sum of $10,837.75; and, on that day, he recovered a judgment in the Circuit Court of Douglas County against Jesse Applegate, as his co-surety, for the sum of $4882.19, with costs, expenses, and disbursements. That judgment was also, and on the day of its rendition, entered on the judgment-lien docket of Douglas County.

A balance of $1385.61 due the State on its judgment was paid by Dowell, November 16, 1878. He gave notice, November 28, 1878, in conformity with the statutes of Oregon, that he claimed the benefit of the judgment of the State against Jesse Applegate for contribution for said sum, with costs and expenses, and that notice was duly entered of record. An execution was issued April 4, 1879, on the State's judgment, with costs, etc., and under it the lands levied on were sold, May 31, 1879, to Jesse Applegate for upwards of $1200. This left due to Dowell on that execution $284.61, with interest from May 31, 1879.

The amount due Dowell, January 1, 1881, from Jesse Apple