41 F. 725 | U.S. Circuit Court for the District of Eastern Missouri | 1890
{after stating the facts as above.) 1. On the hearing of the demurrer there was much controversy as to the character of the bill now before the court, and as to whether it could be maintained after a. final decree. Touching these points it is sufficient to say, that the court refrds it as an ordinary supplemental bill. Complainant the Keokuk & estern Railway Company suggests to the court that since the final decree it has acquired all the interest of one of the original parties in and to the property affected by the litigation and by the decree, and that since the decree certain county officers, who were parties to the suit only in an official capacity, have ceased to be such officers, and that others have been elected in their stead. There is a prayer that the complainant, who has succeeded to the ownership, may be substituted to that position with respect to the litigation that was formerly occupied by the party to whose interest he has succeeded, to the end that certain further action may be taken under the decree. The bill is clearly an ordinary supplemental bill, and tbe proceedings thereon are regulated in this court by the fifty-seventh equity rule, and in England by statute, (15 & 16 Vict, c. 86, § 52.) Daniell, Ch. Pr. (5th Ed.) 1515, 1524; Van Hook v. Throckmorton, 8 Paige, 33; Sedgwick v. Cleveland, 7 Paige, 287. With respect to the right to file a supplemental bill after final decree, it may be said that the rule is the same as in case of bills of revivor. Such bills, it seems, may be filed as well after a final decree as before, if a person who has succeeded to the interest of one of the original parties to the suit, in such manner as to entitle him to the full benefit of the decree, finds it necessary to invoke further action on the part of the court to obtain such benefit. Indeed, a person entitled to the benefit of a decree by acquiring an interest in the subject-matter of the controversy subsequent to the decree is'not, as it seems, entitled to invoke the aid of the court or take further action until he has made himself a party by supplemental bill, and has brought in the representatives or successors in interest of other original parties plaintiff or defendant. Daniell, Ch. Pr. (5th Ed.) 1525-1537; Sedgwick v. Cleveland, supra; Van Hook v. Throckmorton, supra; Binks v. Binks, 2 Bligh, 593, 594; Owings’ Case, 1 Bland, 409.
2. Treating the pleading now before the court as a supplemental bill, filed after final decree, by a party who has succeeded to an interest in the subject-matter of the litigation, the question arises whether the complainant occupies such a relation to any of the parties to the original suit, as entitles him to file such a bill. The decision of this question must depend on the inquiry, whether the decree in the original suit is as conclusive between the Keokuk & Western Railway Company and the several counties and county officials, as it was or is between the Missouri, Iowa & Nebraska Railway Company and those parties. The Keokuk & Western Railway Company has, by virtue of the foreclosure sale, acquired all the interest in the property affected by the litigation that was formerly owned by the Missouri, Iowa & Nebraska Railway Company. If, then,-that decree is as-conclusive' in its behalf as it was in favor of its predecessor in interest; no reason is perceived why it may not file its
It is further contended that the original decree herein could not be pleaded as an estoppel in a suit brought by the Missouri, Iowa & Nebraska Railway Company against the several counties who, with the railway company, were parties to the original action, for the reason that the company and the counties were all named as defendants in the stockholders’ bill, and that as between them no issue was raised or litigated. Hence it is argued that, as the Keokuk & Western Railway Company is merely the successor in interest of the Missouri, Iowa & Nebraska Railway Company, it could enforce no right under the original decree as against the several counties, even if admitted to become a party to the record. I am forced to regard this reasoning as erroneous. The sole question at issue in the original suit was whether the Missouri, Iowa & Nebraska Railway Conipany was entitled, to an exemption from taxation on its property located in the several counties, and upon that issue the company and the counties occupied the position of adversaries. Although the bill was filed by stockholders of the railway company, they did not sue to enforce an individual right, but solely to enforce a right or immunity that pertained to the corporation. The suit was essentially a suit by the corporation against the counties that the stockholders were allowed to prosecute in its behalf, because the directors had been negligent in asserting the right of the corporation. Dodge v. Woolsey, 18 How. 331; Memphis v. Dean, 8 Wall. 73. Inasmuch, then, as the suit was, in effect, a suit by the railway company against the counties, and
But there' is a another point of view from which it appears to the court that- the decree in the stockholders’ suit cannot.be regarded as conclusive between the'counties and the Keokuk & Western Railway Company upon the points litigated in that suit. It must be borne in mind that the Keokuk & Western Railway Company is not a grantee of the Missouri, Iowa & Nebraska Railway Company under a conveyance executed by the latter company subsequent to the decree in the stockholders’ suit, or pending that litigation. The Keokuk & Western Railway Company ácquired its title by the foreclosure of a mortgage that -was executed by the Missouri, Iowa & Nebraska Railway Company in the year 1870; and it does not appear that the mortgagees, or any representative of the mortgagees, were made parties to the stockholders’ suit of Secor and others against the railway company and the several counties. A purchaser at a foreclosure sale becomes a privy in estate with the mortgagor, so as to be bound by a decree against or in favor of the mortgagor, in a suit between the latter and third parties affecting the mortgaged premises, only in those cases where the mortgagee can be regarded as a privy. The purchaser’s rights are precisely those of the mortgagee, and, like his, relate back to the mortgage. A mortgagee is privy in estate with a mortgagor only in respect to the estate as it existed when the mortgage was executed. Mathes v. Cover, 43 Iowa, 512. It is a well-settled rule that mortgagees are not bound by judgments or decrees rendered against the mortgagor, and affecting the mortgaged premises, in suits begun by third parties subsequent to the execution of the mortgage, unless the mortgagees are themselves made parties, or some one authorized to represent them, like trustees of mortgage bondholders, are made parties to the litigation. The doctrine of privity cannot be invoked to bind mortgagees by decrees against the mortgagor, in suits between him and third parties, unless the mortgage was executed pendente lite or after the decree. Campbell v. Hall, 16 N. Y. 575; Scates v. King, 110 Ill. 456; Dooley v. Potter, 140 Mass. 49, 2 N. E. Rep. 935; Cutter v. Jones, 52 Ill. 84; Zoeller v. Riley, 100 N. Y. 102, 2 N. E. Rep. 388; Doe v. Derby, 1 Adol. & E. 783; Bigelow, Estop. (5th Ed.) 142, 143. The result of-the rule as applied to the case at bar, undoubtedly is, that if the stockholders’ suit of Secor and others had terminated in favor of the counties, by a decree adjudging that the property of the Missouri, Iowa & Nebraska Railway Company was subject to taxation, and that tax assessments thereon were valid, such a decree would not have been conclusive against the mortgagees in the then outstanding mortgage, nor against the Keokuk & Western Railway Company. Therefore the decree actually rendered in that case, declaring the property to be exempt, cannot operate as an estoppel between the counties and the Keokuk & Western Railway Company, for the reason that an estoppel must always
As the supplemental bill does not show that the Keokuk & Western Railway Company stands in such privity with the Missouri, Iowa & Nebraska Railway Company as entitles it to the protection of the decree heretofore rendered in favor of the last-named company, the demurrers to the bill should be sustained; and it is so ordered.
