29, a petition was duly presented, and the matters arising thereon were continued until the present term.

It is claimed that the decree of the court below, rendered August 6, 1891, was a final decree, and that, as no appeal was taken from it within the time prescribed by law, this court is without jurisdiction, and that the appeal should have been dismissed.

This question was fully considered by the court before the decree complained of was entered. We did not consider the decree of August 6, 1891, a final decree. The test of what is a final decree is stated by Chief Justice Waite in Mower v. Fletcher, 114 U. S. 128, 5 Sup. Ct. Rep. 799, in the following words:

"That judgment is final, for the purposes of a writ of error to this court, which terminates the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment it had already rendered."

In this case the decree of August 6, 1891, sets aside the deed of assignment made by Ernest H. Chalkley to Williamson Talley, trustee, as fraudulent and void; but it then proceeds to provide for a reference to ascertain who are creditors of Chalkley, the amounts and respective priorities of their claims, and directs the master to report such other matters germane to the suit that any party to the record might require. Surely that decree did not terminate the litigation between the parties to said suit. There is some apparent conflict in the cases on this subject, and it is frequently a difficult matter to determine when decrees in equity are final, in connection with the law relating to appeals. But in this case the decree of the court below does not dispose of the property described in the deed and in the possession of the court, nor does it determine who the creditors of Chalkley are, nor find the sum due any of them. In fact, among the numerous prayers for relief asked for in the bill, the only one disposed of by the decree is that relating to the fraudulent character of the assignment. Had this court simply affirmed the decree, would there have been anything for the court below to have done, other than carry into effect the provisions of the decree appealed from? Certainly there would; and this disposes of the question as to it being a final decree.

We see no reason for changing the conclusion reached in the opinion heretofore filed in this case. We see no error in the decree filed herein at the February term, 1893. No one of the judges concurring in the judgment entered desires a rehearing, and the motion is denied.

This conclusion is reached by the court as constituted when the decree complained of was rendered, by whom the petition for rehearing was considered. The court, as so constituted, has been consulted, with the result stated. Motion denied.

Chief Justice FULLER and Judge T. J. MORRIS concur in this announcement.

MERCANTILE TRUST CO. v. KANAWHA & O. RY. CO. et al., (ADAMS

EXP. CO., Intervener.)

(Circuit Court of Appeals, Sixth Circuit. July 12, 1893.)

No. 70.

1. APPEAL-PARTIES-WHO MUST JOIN.

After confirmation of a foreclosure sale of a railroad, a decree was made, declaring certificates issued by a receiver in a former suit a prior lien on the proceeds of the sale, which were less than one-half the mortgage indebtedness. There was no liability for a deficiency on the part of the stockholders, or otherwise. Held that, the railroad corporation having become practically defunct by the decree of foreclosure, the sale, and the subsequent decree of confirmation, and having no interest in the proceeds, it need not be joined as an appellant from the decree, but that the appeal might be prosecuted by the complainant alone. Hardee v. Wilson, 13 Sup. Ct. Rep. 39, 146 U. S. 179, distinguished.

2. SAME SEVERANCE.

After confirmation of the sale, stipulations as to evidence were entered into between the holder of the certificates, who had intervened in the suit, and the complainant, and thereafter the court proceeded as if the railway company had no interest in the proceeds. Held a substantial severance of the interests of complainant and the defendant railroad corporation.

8. RAILROAD COMPANIES-MORTGAGES

- FORECLOSURE — VESTING TItle Free

FROM LIENS-RECEIVER'S CERTIFICATES. A final decree in a foreclosure suit against a railroad company, whereby the purchasers at the foreclosure sale are vested with a title free from all liens for receiver's debts, operates to set aside so much of a previous order authorizing the issue of receiver's certificates as made them a paramount lien on the road, and transfers the lien of the certificates, if any, to the proceeds of the sale.

4. SAME-DUTY OF HOLDER OF RECEIVER'S CERTIFICATES.

The holder of receiver's certificates is put upon inquiry as to all that has been done in the litigation in which the certificates were authorized, and is charged with notice of all subsequent proceedings therein, and that by final action of the court the validity or security of the certificates may be prejudicially affected; the holder's duty being to advise the court of his claim at an early day.

5. SAME-LACHES-RES JUDICATA.

An order authorizing a receiver in a foreclosure suit against a railroad company to issue certificates was made ex parte, the issue was without notice to the court or to the parties to the suit, and the proceeds were not used for the purpose specified in the order, or for any other purpose of the receiver, or for the benefit of the property or the parties to the cause. The holder made no demand for three years, until after the foreclosure sale had been confirmed and the debts of the receiver judicially ascertained, the certificates in question not being included, and a final decree of confirmation and distribution had been made. Held, that the holder of the certificates was guilty of gross laches, and was estopped by the decree from seeking payment of his claim against the purchasers or distributees. Vilas v. Page, 13 N. E. Rep. 743, 106 N. Y. 439, distinguished.

Appeal from the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio.

In Equity. Suit by the Mercantile Trust Company against the Kanawha & Ohio Railway Company and others for foreclosure of a

mortgage. The Adams Express Company intervened by petition, claiming a lien prior to the mortgage for certificates issued to the express company by a receiver in a previous suit for foreclosure of a former mortgage on the same property. A decree was made declaring said certificates a first lien on the property. Complainant appeals. Reversed.

Statement by TAFT, Circuit Judge:

The principal action in the court below was by the Mercantile Trust Company, as trustee, to foreclose a railroad mortgage against the Kanawha & Ohio Railway Company. The mortgaged road lay partly in Ohio and partly in West Virginia. The decree, which was here appealed from, was based on an intervening petition filed by the Adams Express Company, and declared that certain receiver's certificates held and owned by the intervener were a lien upon the railroad, prior in right to the mortgage of complainant, and directed their payment, with interest, in the sum of about $53,000, out of the proceeds of sale. The road had been bid off at a little more than half of the mortgage debt. The certificates ordered paid had been issued by Thomas R. Sharp, receiver of the part of the railroad lying in West Virginia, appointed by the district court of the United States for West Virginia, exercising circuit court powers, in a previous foreclosure suit begun in that court in November, 1883, by the Central Trust Company against the then owner of the railroad, the Ohio Central Railway Company. The result of that suit was the purchase of the railroad at the foreclosure sale by a committee of the then bondholders, and the organization by them of the Kanawha & Ohio Railway Company, the defendant and mortgagor below, as a consolidated corporation of Ohio and West Virginia, to own and operate it. The force of the receiver's certificates held by the appellee, as liens upon the railroad, depended upon the proceedings in the West Virginia suit in which they were issued, and reference must be made to those proceedings in some detail.

As already stated, the West Virginia suit was begun in November, 1883, and on the next day Sharp was appointed receiver to take charge of and operate so much of the road as lay in West Virginia. On December 13, 1883, the court entered an order as follows: "On reading and filing the verified petition of Thomas R. Sharp, receiver of the Ohio Central Railroad, and it appearing therefrom that it is necessary for the protection and preservation of the property of said railroad company that certain bridges should be repaired, and certain portions of roadbed of said railroad be ditched and ballasted, and certain necessary expenses of maintenance, repair, and management be provided for, and that a sum not exceeding fifty thousand dollars will be required for the purposes aforesaid, on motion of William H. De Lancy, solicitor for said receiver, ordered, that said Thomas R. Sharp, receiver of the Ohio Central Railroad Company, be, and he is hereby, authorized and empowered to issue certificates of indebtedness to an amount not exceeding fifty thousand dollars, and bearing interest at the rate of six per cent. per annum, and payable not exceeding twelve months after date, at the city of New York, for the purposes aforesaid, with power to renew the same; that said certificates shall be a first and paramount lien on so much of the property of the said Ohio Central Railroad Company now in his possession, or which he may hereafter get actual possession of, and the revenues thereof; that the said receiver shall not negotiate said certificates at less than their face value without the further order of the court. And it is further ordered that the said receiver pay said certificates so issued as aforesaid, and the interest thereon, out of the revenues of said railroad company, as received by him from time to time."

And on March 24, 1884, the court modified the foregoing order as follows: "On reading and filing the verified petition of Thomas R. Sharp, receiver of the Ohio Central Railroad Company, and it appearing therefrom that the said receiver cannot sell or negotiate the certificates of indebtedness heretofore authorized to be issued by order of this court dated the 13th of December, 1883, without paying a commission for the sale or negotiation of the same: Now, on motion of William H. De Lancy, solicitor for said peti

tioner, it is ordered that said Thomas R. Sharp, receiver of the Ohio Central Railroad Company, be, and he is hereby, authorized, empowered, and directed to sell or negotiate the certificates of indebtedness heretofore authorized to be issued by him by order of this court dated the 13th of December, 1883, upon such terms and at such rates as he may deem proper, and as he may be able to obtain."

Sharp, the receiver, issued 10 certificates to the Adams Express Company, all like the following:

"Ohio Central Railroad Co., Receiver's Office, April 16, 1884. "In pursuance of an order of the district court of the United States for the district of West Virginia, this is to certify that Thomas R. Sharp, as receiver of the Ohio Central Railroad Company, will pay to Adams Express Company, or order, one day after date, the sum of fourteen thousand three hundred dollars, with interest at the rate of six per cent. per annum. This certificate is a first and paramount lien on the property and revenue of the Ohio Central Railroad Company in possession of Thomas R. Sharp, receiver, is transferable by indorsement, and payable at 50 Broadway, New York city. "Thos. R. Sharp,

"Receiver Ohio Central Railroad Co."

The amounts of the ten certificates varied. The first three were issued on the 16th of April, 1884, and the last one April 3, 1885, and they aggregated $35,535.39. The money received by Sharp from the Adams Express Company was not used for the purpose specified in the order of December 13, 1883, or for any other purpose of the receiver, or for the benefit of the property held therein or of the parties to the cause. Neither the district court of West Virginia, nor the purchasers, nor the Mercantile Trust Company, nor the Kanawha & Ohio Railway Company, knew of the existence of said certificates until three years after they were issued, and until two years after the cause in which their issue had been authorized had been finally adjudicated, and had completely passed from the jurisdiction of the court. The Adams Express Company never demanded of the Kanawha & Ohio Railway Company payment of the certificates, nor in any way, until the filing of its intervening petition in the action below, did it seek to enforce the lien which it claimed on the railroad property. On May 26, 1885, the decree of the foreclosure was entered in the action in the West Virginia district court. The decree of sale provided for the payment of $50,000 of the purchase money in cash, and for the payment of the remainder in bonds and coupons, to be taken at such value as the holders would be entitled to receive on distribution if the entire purchase price had been paid in money. The decree further provided: "But, so far as the purchaser shall pay the purchase money in bonds and coupons, such payments shall not be final until the same is reported to, and shall be supervised and approved by, the court. It is further ordered, adjudged, and decreed that the funds arising from said sale shall remain subject to the further order of the court, and that all questions touching said fund and the distribution thereof, not disposed of by the foregoing decree, are reversed."

The property was sold to Davis, Gallup, and Homans, purchasing trustees for the bondholders, for $600,000, and $50,000 was deposited, as required by the decree. The purchasing trustees also transferred to the depository of the court 5,103 of the mortgage bonds secured by the mortgage which was foreclosed. The sale was confirmed, but the decree of confirmation provided that, because it appeared that the portion of said purchase price necessary to be paid in cash could not be fully ascertained and determined until the coming in of the report thereinafter ordered and the action of the court thereon, the conveyance which the commissioners were ordered to execute to the purchasers should be made subject to the payment of any sums which the court might thereafter direct to be paid in cash on account of said purchase money, and that a vendor's lien should be reserved in said deed on the property and premises thereby conveyed for the security of such payment, with the right to resell on rule said property and premises, or any part thereof, if such payment should not be made within 30 days from

the order of the court to that effect. The decree further appointed Joseph Ruffner a commissioner to ascertain and report to the court the amount of indebtedness due from the said receivers, or either of them, and he was ordered to file his report at or before the special term to be held in the month of January, 1886. The two receivers referred to were Sharp, appointed in West Virginia, and another appointed by the circuit court for the southern district of Ohio in an ancillary suit to sell in foreclosure the Ohio part of the road. The same decrees and orders of sale and confirmation were entered concurrently in both courts.

On the 19th of December, 1885, the special commissioners conveyed the railroad to the purchasing trustees, and the conveyance contained this qualifying clause: "This conveyance is made subject to the payment of any sums which either of said courts may direct to be paid in cash on account of the purchase money, and a vendor's lien is hereby reserved upon the property and premises hereby conveyed, for the security of such payment, with the right reserved to either of said courts to resell on rule said property and premises, or any part thereof, if any such payment shall not be made within thirty days after the order of either of said courts to that effect." The purchasing trustees conveyed the West Virginia part of the road to a corporation under the laws of West Virginia, known as the Kanawha & Ohio Railway Company, and the Ohio part of the road to the Ohio & Kanawha Railway Company, a corporation organized under the laws of Ohio. The deeds by which these conveyances were made contained the following: "Subject, however, to any and all obligations and liabilities assumed or incurred by the parties of the first part hereto, or by the committee hereinbefore named, in the various acts and things done by them, in making or carrying into effect the said agreement of organization, or in making the sale or procuring the purchase of the property hereby conveyed."

April 19, 1886, the two new companies were consolidated under the name of the Kanawha & Ohio Railway Company, the agreement subjecting the consolidated company to all the obligations of the two constituent companies.

On May 26, 1886, Commissioner Ruffner, appointed in the decree of confirmation and sale, filed his report, which contained a statement of the liábilities of Thomas R. Sharp, receiver, in which report the name of the Adams Express Company did not appear, nor did it appear therein that any certificates had been issued by the receiver. On the 10th day of June, 1886, the West Virginia court entered its further decree, in which was recited the report of Sharp, receiver, showing his disbursements made in accordance with the previous order of the court. Sharp's report, Ruffner's report, and the conveyances made by the commissioners to the purchasing trustees were approved and confirmed. The decree required the purchasers to pay to the receiver an additional sum on the purchase price in money, to enable the receiver to pay all his indebtedness, as reported by Ruffner and approved by the court. The total cash paid by the purchasers was $176,000. The remainder of the purchase money they were permitted to pay by turning over bonds of such an amount that, if the whole purchase price had been paid in money, the holders of these bonds would have been entitled to receive, on distribution, such remainder. The decree concluded: "It is further ordered, adjudged, and decreed that upon payment of the balance of the purchase money aforesaid, and the sums herein directed to be paid by them, the said Thomas R. Sharp, as special commissioner, shall make, execute, acknowledge, and deliver to said purchasers or their assigns, as they may direct, good and sufficient deeds of release, releasing and discharging all the liens upon all the property herein sold and conveyed to said purchasers, which were retained and reserved in and by the said decree of confirmation of sale made herein on the 12th day of December, 1885, and by deed of the special commissioners of sale to the said purchasers; and, upon such payments as aforesaid being made, it is declared and decreed that said liens are released and discharged."

On October 13, 1887, Thomas R. Sharp, special commissioner, having theretofore received payment of all sums directed to be paid to him in the decree