Argument for Plaintiffs in Error.

April, 1873, William B. Skidmore, since deceased, recovered a judgment against the last named company in the Cook County Circuit Court. Execution, issued on this judgment, was levied on the premises on the 10th of June, 1873. Under this execution the property was sold to William B. Skidmore on the 10th of July, and a conveyance made to Harriet Skidmore, Lemuel Skidmore and William B. Skidmore, his heirs, in due course of proceeding, on the 3d of May, 1876. The heirs, who are the plaintiffs in error, claiming under this title, brought this suit against the Pittsburg, Cincinnati & St. Louis Company, which was in possession, to recover the property. Upon these facts the court below gave judgment in favor of the railway company, and to reverse that judgment this writ of error was brought.

Mr. George Willard and Mr. George Driggs for plaintiffs in error.-As the questions raised a rule of property, this court will follow the statutes and decisions of the State. Ross v. Barland, 1 Pet. 655; Miles v. Caldwell, 2 Wall. 35; Nichols v. Levy, 5 Wall. 433; Williams v. Kirtland, 13 Wall. 306; Boyce v. Tabb, 18 Wall. 546; Brine v. Insurance Company, 96 U. S. 627; Taylor v. Ypsilanti, 105 U. S. 60; Hammock v. Loan and Trust Company, 105 U. S. 77.-I. The title which the plaintiffs in error exhibited in themselves is paramount to the title exhibited by the defendants in error, under the decisions of the courts and the statutes of the State of Illinois. Rev. Stat. Ill. 1874, ch. 77, §§ 1, 3, 4, 10, 11, 16, 17, 30, 32, 33; ch. 90, § 29; Palmer v. Forbes, 23 Ill. 301; Hunt v. Bullock, 23 Ill. 320; Bruffett v. Great Western Railroad Company, 25 Ill, 353; Titus v. Mabee, 25 Ill. 257; Titus v. Ginheimer, 27 Ill. 462; Maus V. Logansport, Peoria & Burlington Railroad Company, 27 Ill. 77; Smith v. Chicago, Alton & St. Louis Railroad Company, 67 Ill. 191; Peoria & Springfield Railroad Company v. Thompson, 103 Ill. 187; Cooper v. Corbin, 105 Ill. 224. The rights of the defendant in error are equitable, whereas the rights of the plaintiffs in error are legal; and in ejectment legal rights must be held to prevail over equitable rights. Chinquy v. Catholic Bishop of Chicago, 41 Ill. 148; Roundtree v. Little,

Argument for Plaintiffs in Error.

54 Ill. 323; Fischer v. Eslaman, 68 Ill. 78. As between the Columbus, Chicago & Indiana Central Railway Company, as mortgagor, and Roosevelt and Fosdick, as mortgagees, the former, before execution of the sheriff's deed, must be deemed the owner of the fee. Fitch v. Pinckard, 4 Scam. 69; Hall v. Lance, 25 Ill. 277; Moore v. Titman, 44 Ill. 367.-II. The plaintiffs in error showed a right of possession in themselves. The defendant in error as lessee could not question the title of its lessor. A mortgage, even after condition broken, is not such an outstanding title that a stranger can take advantage of it to defeat a recovery by the mortgagor or one claiming under him. Hall v. Lance, 25 Ill. 277. A parol contract relating to an interest in lands for a longer term than one year is void. Rev. Stat. Ill., which has received construction in Comstock v. Ward, 22 Ill. 248; Wheeler v. Frankenthal, 78 Ill. 124; Perry v. McHenry, 13 Ill. 227. The altering of a written contract by parol makes it all parol. Vicary v. Moore, 2 Watts, 451; Dana v. Hancock, 30 Vt. 616; Briggs v. Vermont Central Railroad Company, 31 Vt. 211. See also Barnett v. Barnes, 73 Ill. 216; Hume v. Taylor, 63 Ill. 43; Chapman v. McGrew, 20 Ill. 101; Baker v. Whiteside, 1 Ill. (Breese), 132; Longfellow v. Moore, 102 Ill. 289. The defendant's possession was in fact the possession of the lessor, and it operated the road for the lessor and not in its stead. Pittsburg, Cincinnati & St. Louis Railway Company v. Campbell, 86 Ill. 443; Peoria & Rock Island Railroad Company v. Lane, admr., 83 Ill. 448; Rockford, Rock Island & St. Louis Railroad Company v. Heflin, 65 Ill. 366; West v. St. Louis, Vandalia & Terre Haute Railroad Company, 63 Ill. 545; Chicago & Rock Island Railroad Company v. Whipple, 22 Ill. 105; Ohio & Mississippi Rail road Company v. Dunbar, 20 Ill. 623; Railroad Company v. Barron, 5 Wall. 90; Pennsylvania Company v. Roy, 102 U. S. 451; Illinois Central Railroad Company v. Kanouse, 39 Ill. 272; Toledo, Peoria & Warsaw Railway Company v. Rumbold, 40 Ill. 143. We invoke the aid which the principle established by these cases affords.

No counsel appeared for defendant in error.

Syllabus.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. He stated the facts in the foregoing language and continued:

The judgment below was clearly right. The Columbus, Chicago & Indiana Central Company was, in equity, the owner of the property when the lease was made and when the Pittsburg, Cincinnati & St. Louis Company went into possession under it. The deed executed in February, 1872, pursuant to the contract of purchase, converted the equitable title of the Columbus, Chicago & Indiana Central Company into a legal title, which at once, by operation of law, inured to the benefit of the Pittsburg, Cincinnati & St. Louis Company under its lease. All the rights of William B. Skidmore, as against the property, accrued long after those of the Pittsburg, Cincinnati & St. Louis Company and are subject to the title of that company. Such being the case, it is entirely unnecessary to inquire whether the Skidmores acquired a valid title to the property as against the Columbus, Chicago & Indiana Central Company. The Pittsburg, Cincinnati & St. Louis Company is entitled to the possession, whether that title be good or bad.

The judgment is affirmed.

DAVIES, Collector, v. CORBIN & Others.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

Submitted April 14, 1884.-Decided October 27, 1884.

An order awarding a peremptory writ of mandamus which directs the collector of taxes of a county to collect a tax that had been duly levied and extended on the county tax books is a final judgment subject to review when the other conditions exist.

The power to review the judgment in a proceeding for mandamus to enforce the collection of a tax to pay all judgment creditors of a specified class, depends upon the amount of the whole tax ordered to be collected, and not upon the amount of the judgment debts due to each or any individual petitioner. Motion to dismiss. The facts on which the motion was founded

Statement of Facts.

were these: Each of the defendants in error recovered a separate and distinct judgment in the Circuit Court of the United States for the Eastern District of Arkansas against the

county of Chicot. The aggregate of all the judgments

was much more than $5,000, but the amount due upon each is not stated. After the judgments were recovered, the several plaintiffs commenced proceedings in the Circuit Court to compel the county court of the county to levy a tax for the payment of the amounts due them respectively. The result of these proceedings was that, after the several writs of mandamus were issued, "by the consent of the relators, and by and with the approval and consent of the Circuit Court, it was agreed that if the county court. . . would levy a tax of ten mills upon the property of said county and collect the same, said tax to be distributed pro rata among the judgments so recovered by the relators and others against said county" in the Circuit Court, "that such levy, collection and distribution would be accepted by the relators and the other judgment creditors, as a sufficient compliance by said county court with the commands of the said writs of mandamus." The county court carried out this agreement and levied the tax, which was in due form of law extended on the tax books and placed in the hands of Davies, the collector of the taxes of the county, for collection with the other taxes for that year. After the tax book was delivered to the collector he undertook the collection thereof, as he was bound in law to do, and proceeded until, "on the 29th day of January, 1884, being the last day of the January term of the Chicot County Court, there was filed in open court a complaint in equity, by one Alice R. Hamlet, against " him, "setting up among other facts, that she was the owner of certain lands in Chicot County, assessed, for the year 1883, at $400; that no valid assessment had been made of said lands for various reasons therein set forth; that the board of equalization for said county, which met on the 19th day of June, 1883, was illegally organized, and proceeded, in violation of law, to alter and change the assessments of real and personal property turned over to it by the clerk of said county; and averring that assessments were not legally equalized, and that there

Argument for Motion.

is no valid assessment of property in said county for the year 1883, and that the taxes levied on said assessments cannot be legally enforced by sale or otherwise, against the objection of the tax-payers of said county." The complaint further set forth "the various assessments or rates of taxes levied by the county court for different purposes for the year 1883, including ten mills to pay the judgments against said county" in the Circuit Court. Under this complaint "a temporary restraining order was made by the Hon. John M. Bradley, judge of said court, forbidding" the collector "from collecting any portion of said ten-mill tax." In obedience to this injunction, the collector stopped the collection of the "ten-mill tax," though he went on with all the rest.

Thereupon all the relators united in an application to the Circuit Court for a rule on the collector to show cause why a peremptory writ of mandamus should not issue commanding him to proceed with the collection of the ten-mill tax. The collector appeared in obedience to the rule, and for cause showed that he had been enjoined by the State court from making the collection. The parties went to a hearing on the application of the relators and the return of the collector to the rule. The Circuit Court, after hearing, awarded the writ, and for the reversal of an order to that effect this writ of error was brought by the collector. The relators then moved to dismiss the writ for the following reasons: "First.-Because the said writ of error is sued out upon an order of said Circuit Court for the enforcement of its peremptory writ of mandamus, theretofore duly and regularly issued in accordance with law and the practice of said court, which order is not a final judgment of said Circuit Court, and is, therefore, not such a judgment, order or proceeding as can legally be brought to this court by writ of error, and is not within the jurisdiction of this court. Second. -And because the amount in controversy does not exceed the sum of five thousand dollars, wherefore the same is not within the jurisdiction of this court."

Mr. B. C. Brown, Mr. E. W. Kimball and Mr. C. P. Redmond in support of the motion.-I. The judgment below was not a