valid one, and that she had never received, or sought to receive, any benefit therefrom, or to claim anything thereunder, and that, shortly after the sale was made, she gave notice to Mr. Kennedy that she denied that the sale was valid. Mr. and Mrs. Burche answered this bill. So did Mrs. Mellen. The two suits were brought to a hearing together, on proofs, before the court at special term, and on the twenty-seventh of June, 1877, a decree was made, entitled in both suits, adjudging the sale of December 8, 1873, to have been a valid sale, and that Mrs. Burche and Mrs. Wallach agreed with Mrs. Mellen that the sale should be made, and that, if either of them should purchase at the sale, Mrs. Mellen should lend to the purchaser so much money as should be found necessary to pay off the liens on the property and the arrears of interest, with costs and expenses of sale, and add the same to the original debt of $5,000, and take a new deed of trust for the aggregate amount of those two sums, which deed was to be the first mortgage on the property. The decree referred the suit brought by Mrs. Burche to an auditor to state accounts between Mrs. Burche and Mrs. Wallach. A decree was made dismissing the bill filed by Mrs. Wallach. She appealed from both decrees to the court in general term, which, by a decree made June 5, 1878, consolidated the two suits, reversed the decree in the suit brought by Mrs. Wallach, modified the decree in the other suit, and directed the court in special term to enter a decree in the consolidated suits, confirming the sale by Mr. Kennedy, and referring it to an auditor to take various accounts between the parties. On the fifth of May, 1879, he reported eight accounts. Mrs. Mellen excepted to the report, and the auditor was directed to state a further account. He did so on

October 30, 1879.

On the third of January, 1880, the court in special term made a decree in the consolidated suit, adjudging that the sum of $5,000 due to Mrs. Mellen, and the further sum of $2,429.02 afterwards advanced by her for the payment of interest in arrear, taxes, and other incumbrances, constituted the only lien upon the estate of Mrs. Burche and Mrs. Wallach in the property on the day of sale, December 8, 1873; that the further sum of $970.98 was due Mrs. Mellen from Mrs. Burche, and chargeable on her share in the property; that the sum of $3,975.49 became due on December 8, 1873, to Mrs. Wallach, with interest at the rate of 8 per cent. per annum, for her share of the net proceeds of the sale of the property on that day; and that the property be sold by trustees. An ineffectual attempt by them to sell at auction was made January 26, 1880; $11,000 being bid, and the property being then withdrawn. On June 9, 1880, they sold it at auction to Mrs. Mellen for $9,900. On exceptions by Mrs. Wallach, the court, on November 8, 1880, set aside the sale, and ordered another. It was made at auction on November 19, 1880, to Mrs. Mellen for $9,900. On December 29, 1880, the court, in special term, made a decree confirming the sale, and allowing Mrs. Mellen to discount out of the purchase money her claim of $7,429.02, fixed by the decree of January 3, 1880, with interest on $7,105.41 thereof from December 8, 1873, and the taxes and assessments which had accrued against the property since that date. A statement agreed to between Mrs. Mellen and Mrs. Wallach showed that the net proceeds of sale were insufficient to pay the claims so allowed to Mrs. Mellen by the sum of $3,580.81. Mrs. Wallach appealed to the court in general term, and on the ninth of July, 1881, it made a decree (1 Mackey, 236) which adjudged that the arrangement made between Mrs. Burche and Mrs. Mellen to incumber the property for $8,200 was without the knowledge of Mrs. Wallach, and was never approved or ratified by her; that, at the time of the execution of the trust deed for $8,200, Mrs. Wallach was entitled to have out of the property $3,975.49, with interest at the rate of 8 per cent. per annum from December 8, 1873; that the rights of Mrs. Wallach had not been waived by her, and could not be affected by any arrangement between Mrs. Burche and Mrs. Mellen; that the decree of the court in special term, made Decem

ber 29, 1880, be reversed; that Mrs. Mellen comply with the terms of sale on her purchase within 30 days, or the property be resold at her risk and cost; that the proceeds of the property be applied in the first place to pay to Mrs. Wallach the $3,975.49, with interest thereon at the rate of 8 per cent. per annum from December 8, 1873, and the residue to be paid to Mrs. Mellen; and that Mrs. Mellen pay the costs of the suits. From this decree Mrs. Mellen has taken the present appeal.

The only question for consideration is whether Mrs. Mellen or Mrs. Wallach is entitled to priority of payment out of the net proceeds of the sale of the property under the decree of January 3, 1880. If Mrs. Mellen is entitled to priority, there is nothing for Mrs. Wallach; and she will have lost her interest in the property and her share of the net proceeds of its sale by Mr. Kennedy. Mr. Kennedy was authorized by the deed of trust to sell upon such terms and conditions as he might deem most for the interest of all parties concerned in the sale. He exercised his best judgment in prescribing the terms he did, which were $5,000, with interest at the rate of 10 per cent. per annum from January 15, 1873, and the expenses of the sale, in cash, and the balance at one and two years, with interest at 8 per cent per annum, secured by deed of trust on the property sold. Although Mrs. Wallach attacked the validity of the sale by her suit, and prayed for the canceling of the deed from Mr. Kennedy to Mrs. Burche, and of the trust deed from Mrs. Burche to Mrs. Mellen, the court, in special term, by its decree of June 27, 1877, adjudged the sale to be valid, and, although Mrs. Wallach appealed, the court in general term confirmed the sale. If that sale had been carried out according to its terms, Mrs. Mellen would have received in cash her $5,000 of principal, and what was due to her beyond that would have been secured in notes at one and two years, with a deed of trust, and the surplus going to Mrs. Wallach would have been secured by the same deed of trust. But in such event Mrs. Mellen would have been entitled to receive first the whole amount going to her before Mrs. Wallach could receive anything, because Mrs. Wallach's claim was only to the surplus. But the sale by Mr. Kennedy was not carried out according to its terms. The court, in general term, by its decree of June 5, 1878, confirmed the sale, and provided for taking accounts, although it reversed the decree which had dismissed Mrs. Wallach's bill, and evidently contemplated then that the sale might be carried out; for the decree says that inasmuch as the settlement for such sale, made by Mrs. Mellen and Mrs. Burche, was complained of, and it was alleged that the account on which the sale was settled was made up without the knowledge of Mrs. Wallach, and Mrs. Wallach alleged that a much larger amount had been charged to her than ought to have been, therefore, in order to settle the equities of the parties interested in the sale, between Mrs. Mellen and Mrs. Wallach and Mrs. Burche, and between Mrs. Mellen and Mrs. Burche, and between Mrs. Wallach and Mrs. Burche, growing out of the sale, and otherwise, the reference is made. The reference embraced an ascertainment of the liens on the property at the date of its sale, and what share of them was chargeable to Mrs. Wallach, and what sum, if any, due from her to Mrs. Burche ought to be set off against Mrs. Wallach's interest in the proceeds of Mr. Kennedy's sale, and what were the expenses of such sale. The same decree reserved all the equities between the parties touching the matters in controversy until the report should be made and confirmed.

The $8.200 deed of trust was given by Mrs. Burche to Mrs. Mellen, and the parties got into litigation. As a result of that, the court in special term decreed, on January 3, 1880, that the sum of $5,000 due to Mrs. Mellen, and the $2,429.02 which she had advanced to pay interest in arrear, taxes, and other incumbrances, were liens on the property on the day of Mr. Kennedy's sale. But the decree went on to direct a sale of the property, and of all the interest and estate therein, of all the parties to the suit, by trustees whom it appointed.

The decree directed the trustees to bring into court the money and notes which they should receive, to be distributed under the further order of the court. This decree was not appealed from, but the sale took place under it. That sale was confirmed by the court in special term, by its decree of December 29, 1880. Mrs. Mellen acquiesced in that decree by not appealing from it. On Mrs. Wallach's appeal from it, the court in general term decreed that the trustees who made the sale should require Mrs. Mellen to comply specifically with the terms of her purchase. Mrs. Wallach did not appeal from that, and so she acquiesced in it; and Mrs. Mellen, on her appeal to this court, assigns for error only the action of the general term in giving to Mrs. Wallach priority of payment. Mrs. Burche, being a party to both suits, and not appealing, is bound by the decrees. In view of all this, it must be held that all parties have by their action abandoned the sale by Mr. Kennedy, and acquiesced in the subsequent sale to Mrs. Mellen. It follows from this that all claim of Mrs. Wallach to any surplus from the sale by Mr. Kennedy is gone. Mrs. Mellen, instead of exacting on the sale in cash her $5,000, was willing to leave it to be still a first lien on the property. Her priority of lien, as established by the decree of January 3, 1880, which was not appealed from, extended to the sum of $2,429.02, beyond the $5,000, as money which she had paid to discharge interest, costs, expenses, and taxes which were made a lien on the property by the trust deed to Mr. Kennedy. That amount was, with the $5,000 embraced in the $8,200, covered by the deed of trust made by Mrs. Burche. But, to the extent of $7,429.02, with the interest awarded by the decree of December 29, 1880, Mrs. Mellen's claim stands and has never been satisfied. It is a first lien under the trust deed to Mr. Kennedy, which remains to be enforced for the benefit of Mrs. Mellen, the sale under that deed being, as shown, out of the way, by assent of all parties. Mrs. Mellen has never waived that claim and lien. She asserted them by taking the trust deed from Mrs. Burche, to which we see no valid objection, so far, at least, as the amount for which she had a lien at the date of Mr. Kennedy's sale is concerned, and which is the amount allowed her by the court in special term as a lien. She has asserted the same claim and lien constantly ever since. She did not abandon them by assenting to the resale provided for by the decree of January 3, 1880. In fact, that decree, so far as the $7,429.02 adjudged by it to be due to Mrs. Mellen and to have been a lien on the property on the day of Mr. Kennedy's sale, and so far as Mrs. Mellen's claim to that extent is concerned, may properly be regarded as ordering a resale to enforce Mrs. Mellen's rights under the deed of trust to Mr. Kennedy. Such is its effect. Astor v. Miller, 2 Paige, 68; Olcott v. Bynum, 17 Wall. 63; Markey v. Langley, 92 U. S. 142, 155.

The decree of the court in general term, made July 9, 1881, is reversed, and the cause is remanded to that court, with direction to affirm, with costs, the decree of the court in special terin made December 29, 1880, and to take or direct such further proceedings as may be in conformity with law and not inconsistent with this opinion.

(112 U. S. 12)

NEW ORLEANS, M. & T. R. Co. v. STATE OF MISSISSIPPI ex rel. DISTRICT

ATTORNEY.

(October 27, 1884.)

DRAW-BRIDGE-NEW ORLEANS, MOBILE & TEXAS RAILROAD COMPANY-ACT OF MISSIS SIPPI LEGISLATURE, FEBRUARY 7, 1867-ACT OF CONGRESS MARCH 2, 1868.

The effect of the act of the legislature (Laws Miss., 1867, pp. 332, 335, and 336) was tc require, as a condition upon which the New Orleans, Mobile & Texas Railroad Company could construct its road over the Pearl river on the line between the states of Louisiana and Mississippi, that it should build and maintain a draw-bridge, which, when open, would leave in the channel of the Pearl river space for passing vessels

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at least 60 feet wide; and there is nothing in the said act or in the legislation by congress (15 St. 38, Act March 2, 1868) which, expressly or by implication, in any degree diminishes the legal obligation of the railway company to construct and maintain such a draw-bridge.

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

The following clauses in an act of the legislature of Mississippi, approved February 7, 1867, relating to plaintiff in error, are referred to in the opinion: "And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across any of the waters of this state on the line of the same by bridges: provided, however, that in the central portion of the channel of the Pearl river, of the Bay of St. Louis, of the Bay of Biloxi, and of the East Pascagoula river, and in each of them, said company shall construct and maintain a draw-bridge, which, when open, shall give a clear space for the passage of vessels, of not less than sixty feet in width, and said company, after the construction of the said draw-bridges, shall, at all times thereafter, provide that said draw-bridges shall be opened for the passage of any and all vessels seeking to pass through the same without unnecessary delay: provided, however, that in case the company shall locate the line of their road across the channel of the Rigolet, at a point south of or below the principal entrance of Pearl river into the Rigolet, then the said company shall not be required to construct a draw-bridge across any bayou leading into Pearl river, or across any small pass or mouth of said river. It is also provided that such part of this section as relates to Pearl river, if the line of the road shall be located across the said river at a point where it constitutes the boundary line between the state of Mississippi and the state of Louisiana, shall not take effect until the state of Louisiana has consented to and author.. ized the same, or said company has built such a bridge across said Pearl river, for its said railroad, as shall be in accordance with this section, and also with any authority or power granted to said company by the said states of Louisiana in the premises, and such draw-bridge may be built in the center of the channel of said Pearl river, or in that portion of the same within the territory of the state of Louisiana or of this state, as most convenient for public use." Laws Miss. 1867, pp. 332, 335, 336.

Also the following clauses in an act of the legislature of Louisiana, approved August 19, 1868, in reference to the same company: "And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across the waters of the state of Louisiana, known as the Pass Chef Menteur, Little Rigolet, Great Rigolet, or that part of Lake Pontchartrain east of the west line of Point aux Herbs, and the West Pearl river, and other streams and bayous between Lake Pontchartrain and Pearl river, and Pearl river, by bridges: Provided, however, that in the channel of that part of Lake Pontchartrain hereinbefore named, there shall be constructed and maintained by said company a draw-bridge, which, when open, shall give a clear space for the passage of vessels, of not less than one hundred feet in width; and in the channel of the Pearl river the said company shall construct and maintain a draw-bridge, which, when open, shall give clear space for the passage of vessels, of not less than sixty feet in width. except in case the company shall locate their road across the Great Rigolet at a point south of (or below) the principal entrance of Pearl river into the Great Rigolet, when the company shall only be required to construct one drawbridge, which shall be in the channel of the Great Rigolet, as herein before named; and said company, after the construction of the said draw-bridges or draw-bridge, shall, at all times thereafter, provide that said draw-bridges or draw-bridge shall be opened for the passage of any and all vessels through the same without unnecessary delay. It is also provided that said part of this section as relates to Pearl river, if the line of the road shall be located across

the said river at a point where it constitutes the boundary line between the state of Louisiana and the state of Mississippi, shall not take effect until the state of Mississippi has consented to and authorized the same, or said company has built such a bridge across said Pearl river for its said railroad as shall be in accordance with this section, and also with any authority or power granted to said company by the state of Mississippi in the premises; and such draw-bridge may be built in the center of the channel of said Pearl river, or in that portion of the same within the territory of the state of Mississippi, or of this state, as most convenient for public use." Acts La. 1868, No. 28, p. 32.

Gaylord B. Clark and Thos. L. Bayne, for plaintiff in error. J. Z. George, for defendant in error.

*HARLAN, J. This case has been heretofore in this court upon a question of jurisdiction, and is reported as Railroad Co. v. Mississippi, 102 U.S. 135. The supreme court of Mississippi, in accordance with our decision, reversed the judgment of the inferior state court, with directions to set aside all orders made subsequent to the presentation of the company's petition and bond for the removal of the cause, and to proceed no further. The case was thereafter tried in the circuit court of the United States. The object of the suit is, by mandamus, to compel the railroad company, whose line extends from Mobile to New Orleans, to construct and maintain in the channel of Pearl river, where that stream is crossed by the company's road, on the line between Mississippi and Louisiana, a draw-bridge, which, when open, will give a clear space of not less than 60 feet in width for the passage of vessels. It would seem from the uncontroverted allegations of the petition that the bridge originally constructed by the company across Pearl river had no draw, although the channel, at that point, according to the coast chart, has about 45 feet* depth of water, and the river is nearly 300 yards in width. But, in the answer filed in the circuit court, it was averred, and the demurrer to it admitted, that there was, at that time, a draw which gave a clear space for the passage of vessels of 34 to 36 feet in width. By the final judgment, a peremptory mandamus was awarded requiring the company to remove the present bridge, and in lieu thereof construct and maintain one giving a clear space of not less than 60 feet in width. It is provided in the judgment that such draw-bridge may be built "either in the center of the channel of Pearl river, or in that portion of the same within the territory of the state of Louisiana," or of Mississippi, as "may be most convenient for public use." The controlling question is whether the railroad company is under any legal obligation to construct and maintain a draw-bridge of the kind specified in the judgment of the circuit court.

The company was incorporated by an act of the general assembly of Alabama, approved November 24, 1866, with authority to construct a railroad from the city of Mobile to any point on the line between Alabama and Missis sippi; and also, in continuation thereof, a railroad through Mississippi and Louisiana, with such rights, privileges, and franchises as might be granted to the corporation by the latter states. Laws Ala. 1866-67, p. 6. Its existence as a corporation was recognized and approved by an act of the legislature of Mississippi, approved February 7, 1867, by which it was permitted to have, exercise, and enjoy, within that state, the rights, powers, privileges, and franchises granted to it by the state of Alabama, subject to the conditions, provisions, and restrictions presented in said act, and by the general laws of Mississippi. By the same act the company was authorized to construct and maintain a railroad from any point on the line between Mississippi and Louisiana, thence towards and to any point on the line between Mississippi and Alabama, and extend the same, as contemplated in its act of incorporation, from the western boundary of the state to New Orleans, and from its eastern ⚫boundary to Mobile. It was given a right of way across any waters, water