Argument for Appellants. purpose, to the date of the mortgage, and (in the absence of provisions to the contrary in the decree of sale) covers the interests of all persons who are parties to the cause. 2 Jones on Mortgages, §§ 1653, 1654. This is as true of railroad as of other mortgages. This appellant, deriving its title under the sale, took what it purchased subject to no liens or claims save such, if any, as were paramount to the deed of trust under which the sale was made. Morgan County v. Thomas, 76 Ill. 120; Sullivan v. Portland & Kennebec Railroad, 94 U. S. 806; Menasha v. Milwaukee &c. Railroad, 52 Wis. 414; Wright v. Milwaukee & St. Paul Railroad, 25 Wis. 46. The purchaser takes free even from taxes accruing against the mortgagor under certain circumstances. Cooper v. Corbin, 105 Ill. 224. See also Houston v. Huntsville Bank, 25 Ala. 250; Calvin v. Owens, 22 Ala. 782; Dozier v. Lewis, 27 Mississippi, 683; Winslow v. Otis, 5 Gray, 360; Tubbs v. Williams, 9 Iredell, 1; Pierson v. Catlin, 18 Vt. 77; Ohio Life Ins. & Trust Co. v. Winn, 4 Maryland Ch. 264. What, then, were Holbrook's rights under his judgment of November, 1872? Being subsequent, it would ordinarily be subordinate, to the mortgage, which covered all the debtor's property then owned or thereafter acquired. Pennock v. Coe, 23 How. 117; Dunham v. Railway Co., 1 Wall. 254; Scott v. Clinton &c. Railroad, 6 Bissell, 529; Central Trust Co. v. Railroad Co., 30 Fed. Rep. 895; Hammock v. Loan & Trust Co., 105 U. S. 77, 91. Prima facie the proceeds of the sale belong to the mortgage creditors. Fosdick v. Schall, 99 U. S. 235. To overcome this presumption, there must be some "peculiar equity," some "special circumstances," the existence of which the claimant himself must clearly and affirmatively establish to the court's satisfaction, for the chancellor will always observe great caution in establishing such a preference as appellee here claims. Miltenberger v. Logansport Railway, 106 U. S. 287; Fosdick v. Schall, supra; Union Trust Co. v. Illinois Midland Railway, 117 U. S. 434, 458, 479; Meyer v. Johnston, 53 Ala. 237, 349; Blair v. Railway Co., 22 Fed. Rep. 475. The appointment of a receiver, presumably holding and Argument for Appellants. conducting the business for the benefit of all the creditors, should have no effect, of itself, to change the relations of the creditors to each other or to the common debtor. In the case at bar there is no allegation or proof as to the nature of the claim upon which Holbrook's original judgment was rendered. This, it would seem, ought, of itself, to dispose of appellee's claim. The Holbrook judgment was rendered November 26, 1872. On January 3, 1873, execution thereon was issued, but held until April 3, 1873, when it was returned by the sheriff without levy, by order of Holbrook's own attorneys. In the October following the company defaulted in its interest on the mortgage, making it possible at that time for the mortgagee to proceed to foreclosure. But Holbrook still withheld execution until October 27, 1874, (at which time the company, of course, had defaulted in several more instalments of interest). At the latter date he took out an alias execution, but still delayed to levy, when, on December 30, 1874, the company, by filing its injunction bond, with appellee and others as sureties, prevented any further efforts to collect the judgment, if any were contemplated. The injunction suit was then allowed to drag its slow length along until at the June term, 1879, of the Supreme Court, a final decision was had. Does this statement exhibit such "special circumstances" as would raise any "peculiar equity" in appellee's favor? If we are to indulge in conjecture, it is more than possible that the mortgagee has actually suffered by the act of the appellee in staying Holbrook's execution, or will suffer thereby, if appellee's claim herein is to be allowed. Holbrook, instead of levying on the rolling stock, might have made his claim out of the income of the road while the mortgagor remained in possession. This he could have done without interference with any of the mortgagee's rights or interests. Gilman v. Telegraph Co., 91 U. S. 603; Mississippi Valley Railway Co. v. United States Express Co., 81 Ill. 537; see also Mitchell v. Dewitt, 25 Texas (suppl.) 180; S. C. 78 Am. Dec. 561; Burns v. Huntingdon Bank, 1 Penn. 395; Potter v. Nathans, 1 W. & S. 155; Farmers' Bank v. Sherley, 12 Argument for Appellants. Bush, 304; Fishback v. Bodman, 14 Bush, 117; Johnson v. Morrison, 5 B. Mon. 106; Glass v. Pullen, 6 Bush, 338, 350. In fact, appellee is a volunteer. He was not a party to the original contract between Holbrook and the Cairo and St. Louis Railroad Company. He became a party without Holbrook's consent, indeed, against the latter's interest, and for the very purpose of delaying or defeating him. Bank v. Winston, 2 Brock. 252; Ins. Co. v. Dorsey, 3 Maryland Ch. 334; Swan v. Patterson, 7 Maryland, 164; Gadsden v. Brown, 1 Speer Eq. 37; Shinn v. Budd, 14 N. J. Eq. 234. As toward other creditors Mr. Morrison must be deemed to have trusted to his principal and not to the property. Johnson v. Morrison, 5 B. Mon. 107; Wiggins v. Dorr, 3 Sumner, 419; Bank v. Rudy, 2 Bush, 329. As against one whose interests accrued prior to the execution of the injunction bond or bail bond, the surety on such bond has so identified himself with the principal as not to be distinguished from him. Burns v. Huntingdon Bank, above cited; Parsons v. Briddock, 2 Vernon, 608; Wright v. Morley, 11 Ves. 12; Smith v. Anderson, 18 Maryland, 520; McCormick v. Irwin, 35 Penn. St. 111. The practical effect of Mr. Morrison's act in becoming surety was to prevent the Holbrook judgment from being satisfied at all at a time when it might have been satisfied out of property not covered by appellant's mortgage. To this extent appellee's act impaired appellant's security. Bank of Hopkinsville v. Rudy, 2 Bush, 326, 330, 331. If there was any property in December, 1874, not covered by the mortgage, Holbrook held a lien upon it. The case, then, becomes one where a creditor having a lien on two funds, releases one fund to the prejudice of another creditor, having a lien only on the latter. Glass v. Pullen, above cited. By executing the injunction bond Mr. Morrison destroyed the effect of the Holbrook judgment as a lien on the personalty, and released the latter. Launtz v. Gross, 16 Bradwell (Ill. App.) 329. Consequently, even if subrogated to Holbrook's rights, Morrison could claim no lien on the personalty. There never was Argument for Appellants. a levy under the judgment, and as a lien the execution had become functus officio before the receiver took possession. Carroll v. The Steamboat Leathers, Newb. Adm. 432; Roberts v. The Huntsville, 3 Woods, 386; The Madgis, 31 Fed. Rep. 926. Even without such bond Holbrook could not have seized the company's realty under his judgment (such of it, at least, as was covered by mortgage. Jones on Railroad Securities, SS 104-106). Gue v. Canal Co., 24 How. 257; Hammock v. Loan & Trust Co., above cited. Appellee can, therefore, claim no "peculiar equity" against the mortgagee as having saved the realty from seizure. [Counsel then considered at length and seriatim cases in which debts accruing subsequently to the mortgage have been awarded by the courts priority over the mortgage debt (citing among others Meyer v. Johnston, above cited; Union Trust Co. v. Illinois Midland Railway, 117 U. S. 434, 463; Fosdick v. Schall, 99 U. S. 235, 252; Union Trust Co. v. Souther, 107 U. S. 591; Burnham v. Bowen, 111 U. S. 776; Miltenberger v. Railway Co., 106 U. S. 286, 311; Galveston Railroad v. Cowdrey, 11 Wall. 459; Dunham v. Railway Co., 1 Wall. 254; Porter v. Bessemer Steel Co., 120 U. S. 649, 671; Huidekoper v. Locomotive Works, 99 U. S. 258); and contended that the appellee's claim did not come within any of the favored classes and continued:] The lower courts have uniformly held that a judgment against the mortgagor, subsequent to the mortgage, but prior to the receivership, must be held subject to the mortgage. Central Trust Co. v. Railroad Co., 30 Fed. Rep. 897; Hiles v. Case, Receiver, 9 Bissell, 549; Duncan v. Railroad Co., 2 Woods, 542; Newport Bridge Co. v. Douglass, 12 Bush, 673; Kelly v. Railroad Co., 10 Bissell, 151. Not only is this claim not of the nature of a "current debt,” but it comes within no reasonable limit as to time. The Holbrook judgment was rendered in 1872, and the receiver was not appointed until five years thereafter. While the courts have never undertaken to designate any fixed, certain period of limitation for all cases, it is submitted that such Argument for Appellants. a period as five years is without precedent. The usual period fixed by order of court is commonly six months, seldom over that. Scott v. Clinton &c. Railroad, 6 Bissell, 535; Turner v. Indianapolis &c. Railway, 8 Bissell, 315; Blair v. Railroad Co., 22 Fed. Rep. 474. Such was the period so fixed in this case. Holbrook himself compelled the delay. We submit that five years exceeds all reasonable limits, and that the claim is stale. III. Appellee's claim was barred by the excludatory orders entered previous to the foreclosure sale. The St. Louis and Cairo Railroad Company, the principal appellant here was not a party, save by fiction of law, to the principal cause below; it had no day in court and no opportunity to favor or oppose any of the steps in the cause. It would, therefore, seem no more than just that, in determining its rights herein, as liberal a construction of the orders of the court should be made in its favor as is consistent with the language in which such orders are expressed. Koontz v. Northern Bank, 16 Wall. 196; Miller v. Sherry, 2 Wall. 237, 250; Hamlin v. McCahill, Clarke Ch. N. Y. 249. The doctrine of notice by lis pendens is one strictissimi juris. Cockrill v. Maney, 2 Tenn. Ch. 49; see also Brightman v. Brightman, 1 R. I. 112; Sapp v. Wightman, 103 Ill. 150. Bearing in mind that this question is here raised on behalf of a purchaser for value (the St. Louis and Cairo Railroad Company), we submit, that to fix a purchaser, pending suit, with notice of equities arising out of the suit, the pleadings, etc., must be clear, explicit and direct as to the nature of the claim. The fact that, by possibility, the claim may, upon a contingency not yet accrued, acquire an interest in the res, or a lien upon the property in suit, is not enough to charge the property with such a lien in the hands of such purchaser. See also Shallcross v. Dixon, 7 L. J. (N. S.) Ch. 183; Cake v. Lewis, 8 Penn. St. 493; Ex parte Barwis, 6 De G., McN. & G. 762; Kyle v. Bostick, above cited. The question, then, would seem to turn upon this: When the St. Louis and Cairo Railroad Company bought this property, it bought with notice that appellee was so situated that |