Sonderburg v. The Tow Boat Company. ing a settlement for the salvage service, for they might be well assured that the owners would look sufficiently well after their own interests to protect that of all parties concerned in the salvage. Besides, in that matter, George McClelland would have no interest opposed to theirs. But when it came to a settlement of their proportion of the money, George McClelland really represented the owners of the tugs. This was the necessary relation of the parties. The less he could get them to take the more the owners would receive. The money which he actually paid to the men was afterwards refunded to him by the owners, out of the $30,000 received by them. It has been suggested that this $30,000 was not all for sal vage, but partly for towage, lading and unlading, etc. This plea can hardly be sustained. In the first place, if there is any such admixture of moneys and considerations, it is the fault of the owners for making it. No separate account of any such towage or loading and unloading is presented; and it is fair to infer that all service of that kind was amply cov ered by the extra sum of $4,650 which was subsequently received. The only other point is the question of delay in bringing these suits. On that I have no difficulty. It is not shown that the libelants knew of the settlement which had been made, and the amount of salvage money which had been received, until the suit was brought; on the contrary, the evidence is that they did not know of it. This, of itself, would sufficiently account for the delay, if there were any delay to be accounted for. But I do not see that an action in personam, such as this is, against those who have received and still hold moneys fairly belonging to the libelants, can be said to be a stale demand, in the admiralty sense, by reason of any lapse of time which has taken place in this case. At all events it is unnecessary to pursue the subject, since I am perfeetly satisfied that under the circumstances of this case the exception ought not to prevail. The decree of the district court will be affirmed, except as to the allowance to the respondents of the sum of $2,000 Weaver v. Alter. paid by them to the master of the Princeton, which is first to be deducted from the $30,000 before the division is made. The respondents (the appellants in this court) will be decreed to pay the costs. Let a decree be made accordingly. (The decree can be modified by deducting one-fifteenth part from the amount decreed to each libelant in the court below.) DANIEL WEAVER V. CHARLES E. ALTER ET AL. 1. A controversy between co-defendants to a bill in equity cannot be the matter of a cross-bill, unless its settlement is necessary to a complete decree upon the case made by the original bill. 2. The annulment by decree of court of a tax sale of premises mortgaged to secure notes held by different parties, inures to the benefit. of all such holders, and not solely of the holder at whose suit the decree was made. 3. Where, according to the jurisprudence of Louisiana, property mortgaged to secure several notes has been sold, at the suit of the holder of one of the notes, for a sum insufficient to discharge the entire mortgage debt, and he has been paid his pro rata share of the proceeds of sale, the purchaser takes the property subject to the lien of the mortgage which secures the pro rata share of the other holders of notes. In such case, the prescription of one of such notes does not inure to the benefit of the other holders of notes secured by the mortgage. The pro rata share of each note holder is unaffected thereby. IN EQUITY. Heard for final decree upon pleadings and evidence. The bill was filed by the complainant, who was the holder of one of the notes secured by a mortgage to recover from the purchasers of the mortgaged property, who had become such at a sale ordered by the court in a suit to enforce the mortgage, his share of the purchase price and to assert his lien therefor on the mortgaged premises. The facts were as follows: The complainant and respondents each held one or more promissory notes which were secured by a common mortgage upon the Ormond plantation, Weaver v. Alter. a plantation situated in the parish of St. Charles, in this state. The common mortgage was executed in the year 1871. Subsequently the mortgaged property was sold for taxes to Henry Shepherd. Within the period allowed for redemption of property sold for taxes, Alter, one of the respondents, tendered to Shepherd the amount paid by him at the tax sale, with the fifty per centum of interest, which amount Shepherd refused to receive. Thereupon, Alter instituted a suit against Shepherd to annul the tax sale on account of certain irregularities, and, as owner, to redeem. The Supreme Court of this state (Alter v. Shepherd, 27 La. An., 208) held the sale regular, but on account of the seasonable tender of Alter, who they held, as one of the mortgagees, came within the meaning of the term owner, decreed that the tax sale should be annulled and vacated. Alter then as holder of the notes secured by mortgage, obtained judgment and caused the mortgaged property to be seized under an execution, by the sheriff of the parish of St. Charles and sold. At this sale Alter became purchaser of a large portion of the mortgaged property, and Mrs. McLean, the other respondent, of the remaining portion. The property brought at this sale $24,205. Mrs. McLean, one of the respondents, filed a cross-bill, in which she alleged that the price of the portion of the mortgaged property which she bought was not equal to the amount of the whole price, which, upon a pro rata division, would come to her, and she sought to recover the deficiency from her co-defendant Alter. To this cross-bill both the complainant and the respondent Alter demurred. One of the promissory notes secured by the common mortgage, it was alleged, had become prescribed since the sheriff's sale, though it was not contended that it had become prescribed prior thereto. Both the complainant and the defendant, Mrs. McLean, insisted that the prescription of this note should inure to their benefit, and thus increase ratably the amount of the realized price to which they were entitled as co-mortgagees. Messrs. J. D. Rouse and Wm. Grant, for complainant. Weaver v. Alter. Messrs. T. J. Semmes, Armand Pitot, M. M. Cohen, Jos. P. Hornor and W. S. Benedict, for defendant. BILLINGS, District Judge. The questions presented for decision arise on the cross-bill, and relate to the effect of the redemption from the tax sale by Alter, and the effect of the alleged prescription of the non-presented note. cause. First, Is the matter set up by way of cross-bill, properly matter of a bill not original? The most precise definition of a cross-bill which I have been able to find in the text-books, is in Cooper's Equity Pleadings, page 85. "A cross-bill,” says he, "is a bill which ex vi terminorum implies a bill brought by a defendant in a suit against a plaintiff respecting the matter in question in that bill. But sometimes it is brought against the co-defendants in such depending suit, where they have opposite claims which the court cannot determine in such depending suit upon the bill filed, and the determination of such clashing interests is still necessary to a complete decree upon the subject matter of the suit. But in such last mentioned case, the original plaintiff must be named a defendant, together with the defendants in the first See also to the same effect, Story's Eq. Pl., §§ 392, 396; Wright v. Miller, 1 Sandf. Ch., 123; Galatian v. Erwin, 1 Hopk. Ch., 48; Shields v. Barrow, 17 How., 145; Cross v. De Valle, 1 Wall., 14; Ayres v. Carver, 17 How., 594 and 595, and Rubber Company v. Goodyear, 9 Wall., 809, 810. Now, the matter of the complainants' suit here is to recover, with privilege, so many dollars and so many cents from the defendant Alter as his ratable proportion of the price of the portion of mortgaged property bought by him, and from defendant Mrs. McLean, a fixed sum as the ratable proportion of the price of the portion of the mortgaged property bought by her. The subject matter of the crossbill is a settlement between these two defendants of the balance due from one to the other, resulting from the price severally paid, and to be paid by them, as compared with the respective amounts of their mortgaged notes. With this accounting the complainant has no sort of interest. It could Weaver v. Alter. not at all affect his rights, nor qualify the decree in his favor. It has no more to do with the case, as presented by him, than would a cross-bill between defendants whom he had sued as members of an ordinary partnership for their virile share of a debt due by a partnership, where one defendant should interpose a cross-bill asking, as against a co-defendant, an accounting with reference to all the partnership affairs. The fact that both defendants are citizens of the state of Louisiana, would prevent the court having jurisdiction over the controversy presented by it, viewed as an original bill. As a crossbill, it must fall, as presenting nothing which is necessary to a complete decree upon the subject matter of the complainant's case. The obligation of the defendant Mrs. McLean to the complainant, became distinct from that of her co-defendant when each concluded a purchase of a portion of the mortgaged land at the sheriff's sale, and he cannot be made to be embarrassed by any accounting between them. Secondly. As to the effect of the proceedings by the defendant Alter to annul the tax sale. Precisely what this proceeding was appears in the statement of the case by the Supreme Court, in Alter v. Shepherd, 27 La. An., 208; they say the plaintiff, as holder of several promissory notes secured by mortgage, sues to annul a tax sale of the mortgaged property and a subsequent sale thereof by the purchaser, on the grounds of alleged defects and informalities in the tax sale, collusion therein in the second sale, and his right as mortgagee to redeem the land, which he alleges he offered to do according to law within the legal delay." The court then proceed to discuss the question whether Alter, the plaintiff in that suit, as mortgagee, came within the meaning of the term "owner" as used in the statute of 1873, and decide that he did, and that, as owner, he was entitled to redeem, and decree "that the tax sale and all subsequent sales of said property be annulled upon Alter paying to Shepherd the amount of the tax, with the additional penalty of 50 per cent imposed by the statute; that Alter have judgment against the maker of the notes for $33,750 (the |