Syllabus. that this exemption of interstate and foreign commerce from state regulation does not prevent the State from taxing the property of those engaged in such commerce located within the State as the property of other citizens is taxed, nor from regulating matters of local concern which may incidentally affect commerce, such as wharfage, pilotage, and the like. We have recently had before us the question of taxing the property of a telegraph company, in the case of Western Union Telegraph Co. v. Massachusetts, 125 U. §. 530. The result of the conclusion which we have reached is, that the judgment of the Supreme Court of Alabama must be Reversed, and the cause remanded with instructions to reverse the judgment of the Mobile Circuit Court; and it is so ordered. FARMERS' LOAN AND TRUST COMPANY v. NEWMAN. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI. No. 253. Argued April 25, 26, 1888. Decided May 14, 1888. The receiver in a suit for the foreclosure of a railroad mortgage, being directed by the court to settle and adjust outstanding claims prior to the mortgage debt, and to purchase in outstanding adverse liens or titles, agreed with the holder of a debt, which constituted a paramount lien on a portion of the railroad, for the purchase of his lien and the payment of his debt out of any money coming into the receiver's hands from the part of the railroad covered by the lien, or from the sale of the receiver's certificates, or from the earnings of that portion of the road, or from the sale of it under the decree of the court; and this agreement was carried out on the part of the vendor. When it was made, a decree for a sale had already been made in the foreclosure suit; and afterwards the road was sold as an entirety, with nothing to show the price paid for the portion covered by the lien, and payment was made in mortgage bonds without any money passing. The vendor of the prior lien then intervened in the suit, asking the court to enforce his agreement with the receiver. Subsequently the court confirmed the sale, reserving to itself the power to make further orders respecting claims, rights, or interests in or liens on the property. At a subsequent term of court the Statement of the Case. court found that there was justly due the intervenor the sum claimed, and ordered the sale set aside unless the claim should be paid within ninety days. Held, that the intervenor was entitled to the protection of the court, but that the proper remedy was not the annulling of the sale, and confirmation, and master's deed, if the court had the power to do it, but an order for a resale of the entire property in satisfaction of the claim of the intervenor. THE case as stated by the court was as follows: This is an appeal from a final order setting aside a sale, made under a decree of foreclosure, of certain mortgaged railroad property, as well as the confirmation thereof, and requiring the receiver, appointed in the foreclosure proceedings, to regain possession of the property, unless the purchaser, before the expiration of a named period, paid a claim of the present appellee, for $17,750, with interest thereon at the rate of six per cent per annum from November 30, 1880. The origin of that claim, and the circumstances under which it was asserted in this suit, are as follows: The Lexington, Lake and Gulf Railroad Company was a Missouri corporation, with power to construct and operate a road from Lexington to the southern boundary line of that State. Having constructed the road-bed from Lexington to Butler, in Bates County, and procured ties sufficient for its line as far south as Pleasant Hill, and having also done some dredging, and being indebted to contractors for such work and materials its liability therefor being evidenced by two notes, one held by Munroe & Co. for $10,682.74, and the other by Lawrence Dean for $2000, each dated October 12, 1871, and bearing interest at ten per cent per annum from date the company, January 16, 1872, conveyed its road, together with all its rights, privileges, and franchises, including its depotgrounds and other property, acquired and to be acquired, to Moses Chapman, in trust to secure the payment of said notes, and with authority in the trustee, upon default in paying the notes, principal and interest, on or before March 1, 1872, to sell the mortgaged property, at public auction, upon thirty days' notice of sale, for cash, and convey the same to the purchaser. Statement of the Case. On the 7th of February, 1872, the company leased its road and property (with the right to mortgage the same) to the Burlington and Southwestern Railway Company - for and in behalf of its Linneus Branch - a corporation created under the laws of Missouri and Iowa, and whose road in Missouri was to extend from the Iowa line to Unionville, with a branch by way of Linneus to Lexington, thence to Kansas City and southwestern Missouri. The lease provided, among other things, that the property leased and said Linneus Branch should be represented by one common stock, and, to all intents and purposes, constitute one line of road, and one common property, to be known as the Linneus Branch of the Burlington and Southwestern Railway. The lessor company in the lease covenanted, among other things, that the leased premises were free from all liens, incumbrances, and debts, "except about the sum of $15,000 due contractors thereon." On the 1st of April, 1872, the Burlington and Southwestern Railway Company placed a deed of trust upon its entire Linneus Branch and appurtenances, including the leased premises, extending from the main line of the mortgagor company at or near Unionville, by the way of Linneus and Lexington to Kansas City, and by the line of the leased premises from Lexington to Butler, to secure its bonds amounting to $1,600,000. Upon default in meeting the principal and interest of those bonds, the Farmers' Loan and Trust Company, trustee in the last-named deed, instituted in the court below a suit for foreclosure and sale. A final decree of foreclosure and sale was passed May 19, 1876, but, for some reason, it was not immediately executed. On the 20th of February, 1877, Chapman, trustee in the deed of January 16, 1872, sold the mortgaged premises at public auction, after the required notice, to satisfy the debts secured by that deed, and Henry L. Newman, holding the note given to Munroe & Co., as trustee for the benefit of himself and one Waddell, became the purchaser. Chapman conveyed to Newman, as trustee, the deed being acknowledged August 22, 1877, and filed for record August 5, 1878. On the 24th of December, 1879, Elijah Smith, receiver in Statement of the Case. the foreclosure suit, and also a holder of a large amount of bonds secured by the $1,600,000 mortgage, filed his petition in the foreclosure suit, alleging that Newman and others claimed to own that part of the mortgaged premises consisting of the graded road-bed between Lexington and Butler, and asking that they be enjoined from attempting to interfere with said premises or any part thereof. An injunction was granted, and negotiations then pending between Newman and others for the sale of what he had purchased were thereby broken off. On the 10th of January, 1880, the receiver, Smith, represented, by petition filed in the foreclosure suit, that a portion of the property in his custody is a line of railroad, partly constructed, "extending from Lexington, in La Fayette County, Missouri, to the town of Butler, in the county of Bates, being a portion of the property acquired by contract with the Lexington, Lake and Gulf Railroad Company;" that it was graded and bridged nearly that entire distance - 82 miles; that the work was done some years ago, and was depreciating in value; that said portion of road, if completed, would be of great value to the parties in interest, and it was important to complete it "at once, and before the sale and confirmation under the decree in this case can be had;" that "said railroad and bridges are rapidly going to decay, and the field is threatened to be occupied by a rival line, which would destroy the value of said property," and that said road should at once be ironed and equipped for traffic, in order to protect, preserve, and save said property to the parties in interest. He asked authority to borrow $300,000, upon receiver's certificates, and that the indebtedness so created "be a lien upon said portion of said road before described only," and "prior to all other liens thereon, but said indebtedness to constitute no claim against any other property in the receiver's hands nor any other fund except that pertaining thereto, to wit, said part of said railroad lying south of Lexington, and such additions thereto and property as may be made or acquired by said fund so borrowed." By a subsequent petition he informed the court that it would require $500,000 to do this work, and Statement of the Case. stated other reasons why he should be permitted to build and equip the line south of Lexington for traffic. He also represented that $600,000 had been expended upon that part. The application was granted after notice to the bondholders under the $1,600,000 mortgage, and with their consent. The order authorizing the receiver to borrow $500,000 in certificates or debentures was made on March 3, 1880, and contained these provisions: "And it is further ordered, adjudged and decreed that such certificates or debentures shall be and they are hereby adjudged to be a lien for the principal and interest thereof prior to all other liens or claims whatsoever upon that portion of said defendant's railroad before mentioned, with all of the property and appurtenances thereto belonging, to wit: but upon no other property or funds in the possession of said receiver. "And the said receiver is further authorized and directed to settle and adjust, by payment or otherwise, any outstanding claims against the Lexington, Lake and Gulf Railroad Company which may seem to be prior in right to the claims of the Burlington and Southwestern Railway Company under the contract before mentioned, and to purchase in any outstanding or adverse lien or title to any portion or all of said property upon such terms as he may deem for the interest of the parties concerned, any right or title so acquired to be conveyed to him as receiver for the benefit of the parties in interest herein." It is proper here to state that the certificates authorized by this order were not issued. But a few days after the order was made, namely, on March 12, 1880, Smith, "as receiver of the Burlington and Southwestern Railway Company, acting under authority of the Circuit Court of the United States," entered into a written agreement with Newman, representing himself and Waddell, in which it was stipulated, among other things: 1. That Newman should by quitclaim deed, properly acknowledged and executed within twenty days, and placed in the hands of J. W. Noble in escrow, convey all the right, title, and interest then held by or vested in him "in and to the |