lease? Doubtless, therefore, long before the receiver took possession, the lessor had received in excessive rent their full original cost, and the plea of hardship in losing them wholly fails.

Mr. Robert G. Ingersoll and Mr. John M. Butler contra. Mr. Chief Justice WAITE delivered the opinion of the court. We consider it unnecessary to decide in this case whether a lease of personal property at a specified rent, with an option in the lessee to buy for a fixed price, is in legal effect a conditional sale; because, even if it be, the decree below is in our opinion right. In Fosdick v. Schall (99 U. S., 235), a case which came up from Illinois, we decided that such a contract of sale, if not recorded in accordance with the requirements of the chattel-mortgage acts, was legal and valid as between the parties, and that under a mortgage reaching after-acquired property the mortgagee would take such property subject to all the conditions with which it was encumbered when it came into the hands of the mortgagor. The statute we were then considering was as follows:

"That no mortgage, trust deed, or other conveyance of personal property, having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this act, be deemed a chattel mortgage." Rev. Stat. Ill., 1874, p. 711.

Under this statute the courts of Illinois have uniformly held that contracts of conditional sale are in effect, so far as the chattelmortgage acts are concerned, the same as though a formal bill of sale had been executed and a mortgage given back to secure the purchase-money. So that the question we were then called on to decide was whether one holding as a mortgagee of after-acquired property was a "third person" within the meaning of that law.

The statute of Iowa which is involved in the present case is as follows:

"That no sale, contract, or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or lessee, in actual possession obtained in pursuance thereof, without notice, unless the same be in writing, executed by the vendor or lessor, acknowledged and recorded the same as chattel mortgages." Code of 1873, sec. 1922, p. 356; Acts of Fourteenth General Assembly, c. 63, p. 69.

It will thus be seen that the statutes of the two States are substantially alike, unless a different meaning is given the term "third person," used in the one, from that of "creditor or purchaser," found in the other. If these terms are the same in legal effect, the

principal question involved in this case has already been settled here.

In Fosdick v. Schall we held that a mortgagee whose mortgage embraced property to be acquired in the future was in no sense a purchaser of such property. His rights were not granted after the property was bought by the mortgagor. He got nothing by this provision in his mortgage except what the mortgagor himself had acquired. He paid nothing for his new security. He took as mortgagee just such title as the mortgagor had; no more, no less. The code of Iowa, sec. 1283, authorized mortgages of property afterwards to be acquired, and made them as valid and effectual as if the property were in possession at the time of the execution thereof; but this does not change the case. The question still is, what property has been acquired to which the mortgage can attach. We think, therefore, that the word "purchaser" in the Iowa statute gives the appellants no rights other than those to which they would be entitled under like circumstances in Illinois.

Every mortgagee is necessarily a creditor. A mortgage is in general but an incident to the debt it secures, and the mortgagee is nothing more than a creditor secured by mortgage. These appellants are mortgagees; but, as has just been seen, their mortgage gives them no rights to the property in dispute against the car company, the lessor, or conditional vendor. Their claim is only such as belongs to creditors of the railroad company, the lessee, or conditional vendee. So far as any rights they have as simple creditors are concerned, the railroad company could do with the property just what it pleased. It might have been surrendered to the car company or sold to another. The car company, too, could have taken possession under its lien, and held against any proceeding these creditors might afterwards commence as mere creditors. Unless a creditor is in a condition to prevent the vendee from controlling his property, he is powerless, and the vendor and vendee may contract with each other as they please without consulting him. It follows that although the word "creditor" appears in the statute, it must have been used with some limitation. This makes it necessary to inquire what that limitation was. The statute as we now find it is part of the code of Iowa adopted in 1873. This code, like the Revised Statutes of the United States, was in reality only a convenient compilation or codification of laws before that time in force. In the brief of counsel for the appellants, it is stated in terms that the particular section of the code now in question (sec. 1922) is a copy of chapter 63 of the acts of the Fourteenth General Assembly.

In relation to the Revised Statutes of the United States, we held, in United States v. Bowen (100 U. S., 508), that "when it becomes necessary to construe language in the revision which leaves a substantial doubt as to its meaning, the original statute may be

resorted to for the purpose of ascertaining that meaning." The same rule is applicable to the Iowa code, and there is a substantial doubt here as to what the word "creditor" means. Looking then to the original act, we find the text the same as the code; but the title, omitted in the codification, is as follows: "An act requiring conditional sales of personal property to be recorded like mortgages of personal property to be of any validity as against bonafide purchasers, execution and attaching creditors." In cases of doubt the title might always be resorted to for the purpose of ascertaining the meaning of the body of the act; but especially is this true in States like Iowa, where the constitution provides that "every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much. thereof as shall not be expressed in the title." Art. 3, sec. 29. This leaves no doubt, and clearly confines the operation of the text to such creditors as have by suit perfected a right to impeach the transaction. Such has always been the rule in respect to conveyances made to hinder and delay creditors. Until suit was commenced, the parties were at liberty to deal as they pleased with the property conveyed, and the rights of creditors were determined by the condition in which the property was when they interfered. It is clear, therefore, that these appellants, as creditors at large, had acquired no such special interest in the property, when their bill to foreclose their mortgage was filed, as would give them the right to contest the validity of the car company's title. As against them, in the condition they were, the lien created by the conditional sale was to all intents and purposes valid and subsisting when the receiver, on his appointment, took possession of the property; and his possession, as we said in Fosdick v. Schall, was for the benefit of whomsoever in the end it should be found to concern. The rights of the parties were fixed at the moment the property was taken by the court through its receiver into its own possession. At that time these appellants were not either execution or attaching creditors. They had not then, neither have they since, sued as any other than mortgage creditors endeavoring to enforce their mortgage lien. We conclude, therefore, that the statute of Iowa has a no more extended operation, so far as the circumstances of this case are concerned, than that of Illinois, and that under our former decision the appellants stand precisely where the railroad company would in a controversy with its vendor. To our minds it is unimportant that under the railroad mortgage laws of Iowa "the rolling-stock and personal property of the company, properly belonging to the road and appertaining thereto, shall be deemed a part of the road," for the purposes of a mortgage. Such personal property is still "loose property, susceptible

of separate ownership and separate liens," and it is only such. interest as "properly belongs" to the company that the authorized mortgage reaches. The evident purpose of the act was to do no more than prevent confusion growing out of any difference there might be between recording acts having reference to personal property and those affecting real estate. This disposes of the principal question in the case.

The money recovery below was only for the use of the cars by the receiver during the receivership, and the amount was substantially agreed on. In other words, it is in effect admitted that the use of the cars was worth to the court while operating the road under the trust created by the appointment of a receiver, at the instance of these appellants, just what has been decreed. There can be no doubt that it is the duty of a court to pay from the trust fund it has in possession all the debts it incurred in its judicial capacity while administering the trust assumed, pending the litigation, in behalf of the litigating parties. The objection here is not. that the fund in hand did not incur the debt, the payment of which has been ordered, but that the railroad company, while operating the road before the receivership, paid the car company too large a sum for the use of its cars, and that the debt of the fund should be reduced by the amount of this improvident and excessive payment. There is nothing in the case as it has been brought here by the appeal which will enable us to determine whether the car company ought to contribute anything to the fund in court on this account or not. It is sufficient for our purposes on this appeal that an authorized officer of the court has in a legitimate way charged the fund in hand with the debt, the payment of which has been ordered, and that it has not been proved that the car company owes the railroad company for over-payments made before the receivership was created.

It is impossible for us to determine from anything now here whether the receiver is indebted to the car company for the use of the cars in question after the decree below, or whether the purchaser of the railroad property under the mortgage has used the cars pending the appeal, or that he can, in this suit, be required to make compensation therefor. All those questions will properly come before the court below for determination on the law and the facts when the case goes down.

Decree affirmed.

2 A. & E. R. Cas.-25

WILLIAM HERYFORD AND JAMES W. LEWIS

v.

HENRY H. DAVIS, Sheriff of Chariton County, suing to the use of the Jackson & Sharp Co.

(United States Supreme Court, October Term, 1880.)

The instrument set out below construed to be a mortgage and not a conditional sale, and therefore held to require registry, under the Missouri statute, to protect the property therein mentioned from the creditors of the grantee.

Error to the Circuit Court of the United States for the Western District of Missouri.

This is an action under the statutes of Missouri by Henry H. Davis, sheriff, etc., for the use of the Jackson & Sharp Co., upon a bond of indemnity given by the defendants to said Davis as sheriff, etc.

The copies of the judgment, execution, and bond of indemnity are omitted in the special finding, as they are in the usual form.

The cause was submitted to the court, and a special finding of facts, with conclusion of law and certificate of division of opinion therein, was filed by the court and ordered to be made part of the record, as follows:

1st. That on and prior to the 23d day of December, 1873, the date of the contract hereinafter mentioned and set out, the plaintiff, the Jackson & Sharp Co., was a corporation incorporated under and by the laws of the State of Delaware, having its office and doing business at the city of Wilmington, in the State of Delaware, and engaged in manufacturing railroad cars; that the Keokuk & Kansas City Ry. Co., was a corporation incorporated under and by the laws of the State of Missouri, and engaged in the construction of a railroad through the county of Chariton and other counties in the State of Missouri.

2d. That on the 5th day of January, 1874, the plaintiff delivered to said railroad company, at Salisbury, Missouri, to be used on its railroad in the State of Missouri, one passenger car No. 1, and one mail, baggage, and express car, also No. 1, lettered with the name of the aforesaid railroad company, under and pursuant to the terms and conditions of a written contract dated the 23d day of December, 1873, as follows, to wit:

3d. Articles of agreement made and entered into this 23d day of December, A.D. 1873, by and between the Jackson & Sharp Co., a corporation of the State of Delaware, located in the city of Wilmington, State aforesaid, of the first part, and the Keokuk & Kansas City Ry. Co. of Missouri, with office at Salisbury, State aforesaid, of the second part, witnesseth: