(dissenting). I regret that I am unable to concur in a reversal of the order that the lien of the appellee Jackson should he enforced in this case. I cannot do so, because I think ¡hat the lien exists, and because I believe that the question of lien or no lien was finally adjudicated between these parties by the decree of April 18, 1893, from which no appeal was taken, and that this adjudication is not reviewable upon this appeal from an order made in 1897 for the mere purpose of executing that decree. It is true that the original decree of foreclosure in the main suit, which whs rendered on July 15, 1890, provides that the purchaser or purchasers at the foreclosure sale shall hold the mortgaged property “free and discharged from the claims of all parties to this suit, whether such persons are parties hereto by representa Lion or otherwise”; but that, provision, in my opinion, did not relieve the railroad and its appurtenances of the lien of the appellee Jackson, for two reasons: (1) Because it was made on July 15, 1890, and Jackson was not then a party to the suit, by representation or otherwise, and never became such until he filed his first petition of intervention, on November 31, 1892; and (2) because the decree expressly provided in its seventh paragraph that the property purchased at the foreclosure sale should not be released from the Mens of debts incurred by the receivers in operating the railroad, hut that these debts should constitute paramount liens thereon until the same were paid, and the claim of Jackson was one of these debts. It was not the theory of that decree that the property sold under it: should pass to the purchaser free from the liens of the creditors of the receivers and that those creditors should he paid out of the proceeds of the sale, but the plan and the legal effect of the decree were that the purchaser should take the property subject to the liens of these creditors, which should remain securely fastened upon it until they were paid. It was to effectuate this purpose that the decree expressly provided in the eighth paragraph that the court reserved the power and jurisdiction against the purchaser at the sale and his assigns to hear all claims thereafter preferred which were contracted by tbe receivers, to determine their validity, to decide upon the ex*570istence and rank of their liens, and to retake and sell again the property to be sold under the decree for the purpose of satisfying these claims.

But, to my mind, the conclusive answer to the proposition that the order below should be reversed because Jackson has no lien upon the railroad is that the question of the existence of his lien upon this property is not open for consideration on this appeal, but was conclusively determined by the final decree upon the intervention of Jackson, which was rendered on April 18, 1893. The decree of foreclosure and sale in the original suit was rendered on July 15, 1890; and the order which required the purchaser to pay $30,000 into the registry of the court, and which, it is claimed, devested Jackson’s lien from the property and imposed it upon the money, was made on January 28, 1890. On December 31, 1892, Jackson appeared in this; case for the first time, and filed an intervening petition, in which he pleaded his judgment against the receivers, and alleged that under the statutes of Arkansas and under the foreclosure decree he had a paramount lien upon the railroad-and its appurtenances in the hands of the purchaser at the foreclosure sale, and prayed that this lien might be foreclosed. On March 17, 1893, the purchaser at the foreclosure sale, the appellee Fitzgerald, answered this petition, denied that Jackson had any lien upon the railroad, and pleaded his deposit of the $30,000 in the registry of the court under the order of January 28, 1890. Thus, the question whether or not Jackson had a lien upon the railroad and its appurtenances in the hands of the purchaser was directly in issue upon that intervention. That issue was tried on the merits, and on April 18, 1893, the United States circuit court for the Eastern district of Arkansas entered its decree, which not only recited that Jackson had a lien upon this railroad property, but expressly adjudicated that question, in these words:

“It is therefore ordered, considered, and- adjudged that the said Daniel C. Jackson, intervener, have and recover of and from the said S. W. Fordyce and A. H. Swanson, as receivers as aforesaid, the said sum of five thousand eight hundred and forty-eight dollars and eighty-three cents ($5,848.83), and interest thereon from this date at the rate of six per centum per annum, that said sum is a lien upon said mortgaged premises so purchased by the said Louis Fitzgerald, purchasing trustee as aforesaid, and that the same should be paid out of the fund deposited by said purchasing trustee in the registry of this court for the payment of such debts; and said sum of $30,000 so paid into the registry of this court for the purposes aforesaid having been duly deposited in the German National Bank of Little Bock, Arkansas, the designated and appointed depository of this court,' the clerk is directed to draw an order, payable to-said intervener or his solicitors of record, on said depository, for the signature of the judge, for said sum so allowed said intervener.”

This was a final and conclusive adjudication made on April 18, 1893, between the parties to this appeal, or their privies, that the claim of the appellee was then a lien upon the premises which they purchased at the foreclosure sale. They might have had a review of that decision by taking an appeal from that decree to this court, by a motion for a rehearing, or by a bill of review; but no such proceedings were ever had, and the decree stands unimpeached and unchallenged.

*571A decree is final which terminates the litigation between the parties on the merits of the case, fixes their rights and liabilities, and leaves nothing to he done but to execute it, although the case be referred to a master to state an account, or to determine questions incidental to its execution. Chase v. Driver, 92 Fed. 780, 785; St. Louis, I. M. & S. R. Co. v. Southern Exp. Co., 108 U. S. 24, 29, 2 Sup. Ct. 6; Bank v. Shedd, 121 U. S. 74, 84, 85, 7 Sup. Ct. 807; Hill v. Railroad Co., 140 U. S. 52, 54, 11 Sup. Ct. 690. The only real question on the merits between tbe parties to this intervention was whether or not Jackson had a lien upon the railroad and its appurtenances in the hands of the purchaser after the foreclosure sale, and the deposit of the $30,000 under the order of January 28, 1890; and when that issue was adjudicated, as it was by the decree of April 18, 1893, their rights and liabilities were fixed, and there was nothing left to he done but to execute the decrees that had been rendered. The decree upon the intervention established the lien, and the foreclosure decree adjudged how it should be enforced if the debt was not paid, namely, by retaking and reselling the railroad property purchased under the foreclosure decree. The decree of April 18, 1893, was not only a judgment that Jackson’s lien upon the railroad existed, but it was also an express adjudication that the order for the deposit and the deposit of the $30,000 had not devested it. This is true (1) because tbe fact that the order and deposit had been made was set forth in the pleadings on which the case was tried and upon which the decree was founded; and because, (2) if this fact had not been pleaded or mentioned, the decree that the lien upon the railroad and appurtenances existed after (lie order and deposit had been made would have been equally conclusive upon tbe parties to that decree, and upon their privies, to the ei'fect that it: had not been devested from the railroad, or transferred to the $30,000, by the order or by the deposit. In an action between tbe same parties and those in privity with them upon the same claim or demand, a judgment upou the merits is conclusive, not only as to every matter offered, but as to every admissible matter that might have been offered, to sustain or defeat the claim or demand. Commissioners v. Platt, 49 U. S. App. 216, 223, 25 C. C. A. 87, 91, 79 Fed. 567, 571; Cromwell v. Sac County, 94 U. S. 351, 352; Dickson v. Wilkinson, 3 How. 57, 61; Dimock v. Copper Co., 117 U. S. 559, 565, 6 Sup. Ct. 855; Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 691, 15 Sup. Ct. 733. The act of congress limited the time within which this adjudication could be reviewed in this court: to six months from the date of the entry of the decree, and no appeal was ever taken from it. As it was a final decree, it was not re viewable on an appeal from any subsequent orders or decrees entered for the purpose of enforcing the rights and liabilities which were fixed by it. Rev. St. § 692; 26 Stat. c. 517, § 6; 1 Supp. Rev. St. (2d Ed.) p. 903; Chase v. Driver, 92 Fed. 780, 783; Fourniquet v. Perkins, 16 How. 82, 84. Now, the appeal in this suit: is from an order made on November 27, 1897, for the mere purpose of enforcing the lien fixed by the decree of April 18, 1893, and of executing that decree and the original decree of foreclosure, which expressly provided that, if such *572liens were not paid, they might be enforced by a reseizure and another sale of the mdrtgaged property. This appeal was not taken until March 25, 1898, more than four years after the decree which established the lien was rendered, and it does not challenge or mention that adjudication. For these reasons, I am constrained to believe that the question of the existence of Jackson’s lien upon the railroad in the hands of these appellees is not here for our consideration; that it was finally adjudicated by the decree of April 18, 1893; and that this court has no jurisdiction to review or reverse that decree on an appeal from a mere order in execution of it made more than four years after its entry.

I attach no importance to the disposition of the $30,000 paid into the registry of the court, or to the futile attempts of Jackson to secure payment of his claim by means of worthless orders upon a fund that was gone. If, as the majority of the court hold, the question of the existence of his lien upon the railroad property is reviewable upon this appeal, and if the order for the deposit and the deposit of the $30,000 devested that lien from this property and transferred it to the lost fund, then the lien upon the railroad does not exist, and the order below should be reversed. If, on the other hand, the question of lien or no lien', which was determined by the decree of April 18, 1893, is not reviewable here in the absence of an appeal from that decree, or if the order for the deposit and the deposit did not devest that lien, then it exists, and it will continue to exist until it is either paid' in full, or released by Jackson, or discharged by the decree of a court; and the order below was right. It seems to me that that order should be affirmed.

after stating the case as above, delivered the opinion of the court.

It is urged at the outset by counsel for the appellee that this appeal should be dismissed for the reason that S. W. Fordyce and A. H. Swanson did not join in the same. It appears from an inspection of the intervening petition and the responses thereto that neither Fordyce nor Swanson were made parties to the proceeding now under review. No notice was served upon them, and no appearance entered for them. The only ground urged by counsel for treating them as parties to the litigation is that the court below, in its final order appealed from, directed, in case the St. Louis Southwestern Railway Company failed to pay appellee’s demand within 90 days, that Fordyce and Swanson, as receivers, should take possession of the railroad for the purpose of raising a fund, under the orders of the court, to satisfy and pay off appellee’s claim. The record shows that Fordyce and Swanson were finally discharged as receivers, and *565the sureties on their bonds were also released and discharged, by an order made in the principal case as early as October 26, 1893. This was more than four years before the proceeding was instituted in which the order of the court under consideration was made. Mot being officers of the court, they were not subject to the jurisdiction of the court over them as such officers in said proceeding; and as they were neither made parties thereto, nor entered their appearance therein, it is not apparent why the court below assumed to exercise jurisdiction over them by embodying in its orders any direction to' then. In our opinion, they were not required, under 1 ho principles announced in the case of Estis v. Trabue, 128 U. S. 225. 9 Sup. Ct. 58, arid cases there cited, to which our attention is directed, to join in the appeal of the railway company, in order to confer jurisdiction upon tliis court; and the motion to dismiss is without merit.

The assignment of errors and the argument of counsel on the merits of the case present the question whether, according to the true construction of the several orders and decrees of the court made in the principal case, and in the two interventions of the appellee, his claim was, at the date of the order appealed from, a subsisting lien against the property of the appellant railway company, and whether the same ought now to be paid by said railway company. Whether appellee’s claim was originally made a lien upon the railway by a state statute or an order of court is immaterial. It must be conceded that it was, by virtue of one or both of these authorities, originally fixed as a lieu upon the railroad and its property. But it was a lien upon property in the bauds of the court, subject to divers other liens and claims, and necessarily subject to such orders and decrees of the court in the matter of its satisfaction and discharge as, in consideration of the rights and equities of all partios in interest, should seem equitable and just. The comprehensive powers of a court of equiiy are, without doubt, sufficient to warrant it in discharging a lien once attached to property by the substitution of other property or money in lieu thereof. In fact, it is a common practice in equitable proceedings to order property incumbered by many liens sold free and discharged from all of them, subjecting the proceeds of such sale in money to the same priorities and liens as originally attached to the property itself. Such being the established equitable doctrine, it becomes necessary to inquire whether the court, by the several orders and decrees involved in tliis case, extinguished the lien of appellee, as originally fixed upon the property itself, by providing other methods for its satisfaction and discharge.

Counsel for appellee claim that by the true construction of the order of January 31, 1890, and the decree of foreclosure, appellee’s claim still remains a lien upon the railroad purchased by the appellant; and this was the view of the trial court. While the decree of foreclosure refers to the liens created by the order of January 31, 1890, and continues them in force until paid, it also provides a definite scheme for their payment, namely, by permitting the purchaser to pay the same, together with, divers other obligations of *566the receivers, as a part of the purchase price for the property acquired. The decree required a certain sum to be paid in cash, and also provided for the payment of such additional sum in cash as the court might order upon confirmation of the sale. After the report of the sale was made by the master appointed for that purpose, the court, by its order of January 20, 1891, as amended by the order of January 28, 1891, with knowledge, as shown by the record, of the existence of pending claims against the receivers, required, as a condition of confirmation of the sale, apparently in view of the right reserved for that purpose in the decree, the payment into the registry of the court of the sum of $30,000 over and above that originally required to be paid; the same to be applied, according to the terms of the order, in payment, among other things, “of the debts and claims allowed and that might be allowed against the receivership.” By the terms of the order of confirmation, the possession of the property purchased was not to be delivered to the purchaser until the sum of $30,000 should be paid into the registry of the court for the purposes aforesaid. When that sum was so paid, the purchaser was entitled to a deed, which the master was directed to execute, and als.o to the possession of the property purchased by him. These orders and this course of procedure were clearly contemplated in and by the provisions of the decree of foreclosure, and were manifestly intended to have the effect upon the title to the property in question as expressed in the twelfth subdivision of the decree, which reads as follows:

“The purchaser or purchasers of the property at the sale herein ordered shall be invested with and shall hold possession and enjoy the property so bought and conveyed to them, * * * and all the rights, privileges, and franchises appertaining thereto, as fully and completely as the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri heretofore and now holds and enjoys the same; * * * and the said purchaser or purchasers shall have and bo entitled to hold and enjoy said property free and discharged from the lien or incumbrance of the several mortgages hereinbefore referred to, and free and discharged from the claims of all parties to this suit, whether such persons are parties hereto by representation or otherwise.”

From all of the provisions of, the decree of foreclosure and the orders of the court under consideration, it seems that it was the intention of the court to provide for the deposit of enough money at one time or another, pending the process of transferring possession to the purchaser of the property sold, to pay all probable liens, and for the delivery of the railroad property to the purchaser free from the same. This, in our opinion, is rendered more clear by a clause in the order of January 20, 1891, which, after providing for the payment into the registry of the court of the additional sum of $30,000, to be applied as already stated, reads as follows:

“Tbe payment of said sum shall not affect the liability of the road or the purchaser for any other or greater sum or sums for which the receivership or railroad may be liable under the orders of this court or the decree for the sale of said road.”

This clause, by necessary implication, in our opinion, means that, to the extent of such claims as could be paid out of the $30,000 to *567The deposited in the registry of the court, the road was relieved of liens, and (he purchaser relieved of liability therefor. If, perchance, there might be any claims exceeding said sum of 830,000, the court, by the final clause of tiie decree of foreclosure, and its order of May 14, 1891, relating to the delivery of the possession of tiie property to the purchaser, retained jurisdiction over tiie purchaser and the property purchased, to require a further deposit or other satisfactory provision for their payment.

A consideration of the first intervening petition of the appellee, tiie responses thereto by Fitzgerald and the railway company, and tiie order of the court thereon, instead of affording any ground for the contention of the appellee, conduces to the opposite result. The intervener, in Ids petition, among other things, tenders the issue that there had been deposited in the registry of the court, by order of the court, a sum of money for the purpose of paying off such claims as his. Tiie respondents met this issue, denying intervener’s rigid to have his claim for personal injuries paid out of the fund so deposited, and alleging their superior right to the same. Tiie court, on April 18, 1893, after hearing the issue so presented, made the order of that date, under and by the terms of which it is insisted (hat the lien of appellee's claim was recognized, and continued against the property itself. In determining the true meaning of this order, it must be considered in the light of the decree of foreclosure, disclosing, as already observed, a manifest purpose to provide a scheme for the payment of lien claims so as to enable the purchaser to receive the property free and discharged from all liens, and also In 1 lie light of the order of confirmation of sale, in effect, as already observed, releasing tiie road and the purchasers thereof from liability for any and all claims within the limit of $30,000 then deposited in the registry of the court, and particularly in the light of the issues tendered on which the order itself was made. Oo considering this order, we art» of the opinion that its true meaning is a declaration (hat tiie claim of the intervener is preferential in its character, and falls within the purview of ihe order of January 31, 1890; that is to say, is superior and paramount in right to any lien acquired by tiie purchaser, and because of such superiority should be paid out of the fund deposited for the purpose of satisfying such claims. Counsel for appellee insist that because (he order contains the words that the claim “is a lien’’ upon the mortgaged premises superior, etc., such recital is an adjudication that the claim was then a subsisting lien against the property itself, which was binding upon the court below in making the order now under review. In our opinion, this is unsound. Under the issues presented, it was necessary and proper for ilie court to declare the claim to be a lien wiihin the purview of (he order of January 31, 1890, as a preliminary finding in support of the final and effective order for relief, requiring the same to be paid out of the fund of $30,006 set apart for the payment of such claims as should be allowed against the receivership. Tiie bare fact that the court recites (hat the claim “is a lien'’ should be read in the light of the issue tendered and tiie prior orders of the court therein referred to, and, so read, the court *568clearly means to declare that the claim was so a lien as to be entitled to be paid out of said fund. When such construction can reasonably be given to the words above quoted, relied upon by counsel for appellee, as is responsive to the issue joined, and in harmony with the. prior orders and decrees made in the principal case, the court should adopt that construction, rather than single out these words, and give to them a literal interpretation irresponsive to the issue joined, inconsistent with the order of January 20, 1891, and repugnant to the entire theory of the decree of foreclosure.

That the conclusion already announced is correct also appears from a consideration of the culminating order in the case. The court, after declaring the claim of the appellee to be a lien, noticeably fails to follow such declaration with any order in the nature of a provision for its foreclosure, which alone would be consistent with the theory that the claim was then a subsisting lien against the railroad, but, on the contrary, after declaring that it should be paid out of the $30,000 fund referred to in the order as having been “deposited by said purchasing trustee in the registry of the court for the payment of such debts,” makes the final and only decretal order to respond accurately to the issues submitted, as follows:

“The clerk is directed to draw an order, payable to said intervener or his solicitor of record, on said depository, for the signature of the judge, for said sum so allowed said intervener.”

For the foregoing reasons, it is our opinion that the. court, in the exercise of undoubted power, displaced the lien once existing in favor of such claims as that of the appellee against the railroad itself, by requiring the purchaser to deposit a sufficient amount of the purchase money in the registry of the court to fully satisfy the same, and that by so doing the appellee’s right was transferred from the property to the money so deposited.

The second intervening petition of Jackson, which resulted in the order now under review, is predicated upon the theory that by reason of the orders and decrees of the court, already sufficiently stated and considered, his claim became, has always remained, and now is, a lien upon the railroad property purchased by the appellants, and that, inasmuch as it has not been paid to him, the .relief afforded by the order of the court below in this case is proper. For the reasons already stated, this theory is, in our opinion, unsound. The fund deposited by appellant in the registry of the court took the place, pro tanto, of the railroad. The lien for the payment of such claims as that of the appellee, to the extent of the amount of the fund deposited for their payment, was transferred from the railroad to the fund itself; and the fact that the fund has been lost or placed in jeopardy, without fault of appellants, by orders of the secretary of the treasury transferring it from the depositary designated by the court to a bank which proved to be insolvent, cannot, however unfortunate be the results, afford any grounds for reinstating the lien upon the property purchased and once fully paid for by the appellants, or for requiring the appellants to pay the claim of the appellee a second time.

*569In the view we have taken of this case, it is not deemed necessary to express any opinion upon the question, argued by counsel, as to whether the receipt by aj)pellee of the draft drawn upon the German National Bank for the payment of his claim is in itself a payment thereof. In our opinion, the proceedings in the case resulting in the deposit of the fund in the registry of the court by the purchaser was in itself a discharge of any obligation resting upon the purchaser or the property purchased, irrespective of any of the facts relating to the steps taken by the appellee to secure his money from the registry of the court.

It results from the views here expressed that the appellee has no ground for equitable relief against the appellant or its property, and that the order of the court below granting to him the relief prayed for was erroneous. The case will be remanded, with directions to the trial court to dismiss the petition.