was likewIse an equity proceeuing, it is wholly immaterial how the parties were 8rranj:ted upon the record. The decree rendered was certainly a conclusive adjudication, between the Company and the counties, that the property of the former was exempt from taxation, and in a suit between them might be invoked as an estoppel. But there :is .a another point of view from which it appears to the court thatthe 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, Iowg& 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 acquired 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, S08S to be bound by a decree against or in favor of the mortgagor, in aanit between the latter and tbirdpartiesaffecting the mortigaged premises,only in those cases where the mortj:tagee can be regarded as a privy. The purchaser's rights ,are precisely those 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 _executed. Mathea v.' Cover, 43 Iowa, 512. It is It wellsettled rule that mortgagees are not bound by judgments'or decrees renderedngainst the mortgagor, and affecting the mortgaged premises, in suits begun by third parties subsequent to the execution of the mortgaj:te, unless the mortgagees are themselves made parties,or 80me 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 andihird parties, unless the mortgage was executed pendente lite or after the decree. CampbeU v. HaU, 16 N. Y. 575; Scate8 v. King, 110 Ill. 456; Dooley v. Potter, 140 Mass. 49, 2 N. E. Rep. 935; Outterv.Jones, 52 Ill. 84; ZoeUerv. Riley, 100 N. Y. 102,2 N. E. Rep. 388. Doe v. Derby, 1 Ado!. & 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, bya decree adjudging that the property of the Missouri, Iowa & Nebraska Railway Company was subject to taxation, and that tax: assessments thereon were valid, such it decree would nQt have been conclusive against the mortgagees in the then outstanding mortgage, ndragainst 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
EOUTBERN PAC. B. CO. tI. TILLEY.
be mutual. McDonald v. Gregory, 41 Iowa, 513; Bigelow, Estop. 113, 114. As the supplemental bill does not show that the Keokuk & Western Railway stands in such privity with the Missouri, Iowa & Ne-. braska 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.
11. TIJ,LEY al. PATTERSON
SAHE 'D. WALKER.
(OfrcuU Oourt, S. D. Oalifornia. March 17, 1890.)
PuBLIO LANDS.....DoNATION TO RAILROAD.
14 St. U. S. 292, granted to the Southern Pacific Railroad Company certain land, and provided that, in case any 01 said land should have been previously disposed of, the company should seleot other land in certain seotions in lieu thereof. The secretary of the interior withdrew such sections, but afterwards allowed a homesteader to enter and obtain patent to a part of one of them. After the patent had issued, the company attempted to select this land, but was not allowed to do so. that the company had DO right to said land under the grant.
In Joseph D. Redding, for complainant. Joseph H. Call, for defendants. Ross, J. The land in controversy in this suit having been entered by the defendant Tilley as a homestead, and a patent therefor having been issued to him by the government, the complainarit seeks to obtain a eree that the title thus conveyed is held in trust for it. Prior to the year 1874 the land was unsurveyed public land of the United States. In that year it was surveyed, and a plat of the survey filed in the local land-office. The source of the complainant's alleged right is the grant made to it by congress in the act passed July 27, 1866, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast," by the Southern route, by which act the Southern Pacific Railroad Company was authorized to connect with the Atlantic & Pacific Railroad at such point near the boundary line of the state of California as they should deem most suitable for a railroad line to San Francisco, and, subject to certain conditions, exceptions, and limitations, was granted every alternate section of public land, not mineral, designated by odd numbers, to the amount of 10 alternate sections per mile on each side of such road, to which the United States should have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or o.ther claims or rights at the time such road should be designated by a plat thereof filed in the office of the commissioner of the genera.l.land-offiCQj