WILLIAM FRASER AND ROSA W. S. FRASER, HIS WIFE, vs. LEONARD B. PRATHER, GEO. MILLER, FRANCIS MILLER, JAMES L. CRAMER, EDWARD SHAW, AND JAS. G. JEWELL

WILLIAM FRASER AND ROSA W. S. FRASER, HIS WIFE, vs. LEONARD B. PRATHER, GEO. MILLER, FRANCIS MILLER, JAMES L. CRAMER, EDWARD SHAW, AND JAS. G. JEWELL. Equity. No. 3063. I. Notice by publication to non-resident defendants does not confer jurisdiction over them of itself, but if the subject of the suit be properly lying within the jurisdiction of the court, a decree after such notice would bind such property. II. Where a statute requires notice to non-residents to be given by publication, and a judgment or decree is passed affecting the property subject to the jurisdiction of the court without the publication of the required notice, the decree or judgment, though erroneous, is not void, and a purchaser at a sale under such decree or judgment would take a valid title although the judgment might afterward be reversed for its errors in a higher court. III. The purchaser at a foreclosure sale acquires no estate in consequence of his bid or the payment of the purchase-money, nor has,the trustee appointed by the court to sell the premises any authority to make the purchaser a deed unless the sale is ratified and confirmed by an order of court. IV. A foreclosure suit commenced during the life-time of the mortgagor who is non-resident, and notice by publication has been made as required by law, a decree in such suit for the sale of real estate in this jurisdiction cannot be impeached on the ground that the mortgagor was dead at the time the decree was passed. V. A mortgagor, or those claiming under him, who delay for a period of eight years before filing a bill to redeem from the purchasers at a foreclosure sale, and where such purchasers, believing in good faith their title to be perfect, have expended many thousands of dollars in permanent improvements upon such property, such mortgagor or those claiming under him will not be permitted to redeem in view of such laches without allowing the value of such improvements; and this will be made a condition of their right to redeem. VI. Under the special circumstances of this case, the complainants are required by the court to pay for new and permanent improvements in order to be permitted to redeem. VII. A tax-title in defendant which the complainants seek to have removed on the ground that it is a cloud upon their title, is remitted to the circuit to have its validity tried by a jury, and the case is retained until that issue shall be determined. STATEMENT OP THE CASE. On the 2d of April, 1861, Benjamin F. Slocum executed a deed of trust to James L. Cramer, conveying lot 5, square 516, in the city of Washington, for the purpose of securing payment of his note of the same date for $100, with interest, to the order of said James L. Cramer, one year after date. Slocum was, at that time, a clerk in the Department of the Interior, but the civil war was then imminent, and in a few days after the execution of the deed of trust and note aforesaid he left his situation and returned to the South, of which section he was a native. The note being overdue and unpaid, Cramer, on the 13th June, 1862, filed his bill in equity against Slocum, setting out that defendant was a non-resident •, that he had executed the deed and note aforesaid •, that the debt so secured was overdue and unpaid; also setting out the following provision of the deed of trust: “And if default shall be made in the payment of the principal or interest above mentioned, then the said party of the second part, or his assigns, are hereby authorized to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due with costs and expenses allowed by law.” The bill then proceeds to set out that since the power to sell the property could not properly be exercised by the complainant, inasmuch as he was interested, it would be right that some other person not interested should be appointed by the court to make the sale in his stead, under the direction and subject to the ratification of the court. The bill then prays that defendant should be required to answer its several allegations, and that the premises aforesaid, or so much thereof as may he necessary, should be sold for the payment of the complainant’s claim and for general relief. An affidavit stating the non-residence of the defendant was filed with the bill. The deed of trust contains no words of inheritance to the grantee, but as he was a trustee' with power to sell and convey all the estate of the grantor in the property, the interest conveyed must be regarded as commensurate with the purposes of the trust. Slocum died ou the 9th of November, 1862, after the commencement of the suit, and his widow intermarried with her co-complainant in 1866. Publication of notice to the defendant was ordered to be made in the National Intelligencer once in each six successive weeks before the third Monday of October, 1862, in the usual form, requiring the defendant to appear in person, or by solicitor, on or before that day to answer the bill, and show cause, if any he has, why a decree ought not to pass as prayed. The first insertion of the notice was made on the 14th of June, the day after the filing of the bill. Defendant having failed to appear and answer, a decree, pro confesso, was passed on the 14th February, 1863, by which the defendant was adjudged and decreed to pay to the complainant the amount of said debt, interest, and costs, on or before 1st April, 1863, and in default of such payment the property in question to be sold, and a trustee named and appointed for that purpose, with directions as to the manner of making the sale. In consequence of the resignation of the trust by the trustee so appointed, the court appointed another in his place on the 16th July, 1863 — Thomas Scrivener, jr., who accepted the trust and gave bond. On the 30th day of July, 1863, the whole of the lot in question was sold by the trustee to one George W. Mitchell, for $941.05. But Mitchell having failed to comply with the terms of sale, the property was again sold by the trustee, on the 17th of August, 1863, to J. Gray Jewell for $449.13, by whom the purchase was paid partly in cash and partly in bonds for the deferred installments, as required by order of sale. On the 7th of November, 1863, the report of the trustee was confirmed: “Unless cause to the contrary thereof be shown on or before the first Tuesday of February next, provided a copy of this order be inserted in the Morning Chronicle, a newspaper printed in the city of Washington, once in each of three successive issues before the first day of January next.” Thomas Scrivener, jr., having died in the mean time, on the petition of J. Gray Jewell, the purchaser, a new trustee, Edward Shaw, was appointed in his stead on the 2d March, 1864. This trustee did not file his bond till 28th November, 1864. On the 11th April, 1866, he filed his report, stating that J. Gray Jewell, the purchaser, having paid the whole amount of the purchase-money in full, the trustee had made him a deed for the property; that Cramer, the creditor, had been paid his debt in full; and that, after deducting all costs and charges, there remained on hand $257.80. The publication of notice in this case was made in pursuance of the Maryland act of 1795, ch. 88, sec. 1; and the decree, pro confesso, was also in accordance with the provisions of that law, which is in these words: “ And in case the defendant or defendants shall not so appear, within the time so limited, either the bill, at the discretion of the chancellor, may be taken pro confesso, and he shall proceed to decree in the same manner as if the defendant or defendants had admitted by answer the facts in the bill.” So, according to this law, the court has authority in such cases to turn a decree pro confesso into a decree absolute and final, without the usual postponement to another term, and ¡such was the course of the proceedings in the present cause. In addition to his claims under these proceedings, Jewell had acquired color of right to the property under a certain tax-title sale of the entire lot to satisfy the corporation for taxes due thereon for the year 1861, and amounting to the sum of $9.41, having been made to him by the collector, on May 22,1862, for $10.70, and a deed having been executed to him by the corporation on September 15,1864. With these sources of title, Jewell subdivided the original lot into three several parcels in 1866, and conveyed one of such parcels to each of the defendants, Prather, George Miller, and Francis Miller, for an aggregate consideration of $3,459.73. It was to redeem the property from the mortgage and such tax-title (against which various grounds of avoidance were assigned by the bill) that the present proceedings were instituted. The grantees of Jewell filed a joint answer in the present suit admitting the execution of the mortgage and the proceedings had thereon, the title of Jewell, and his subsequent conveyances, but denying the remaining allegations erf the bill. The answer also sets up that they purchased in good faith and upon the advice of counsel that the title was good, and that relying upon the soundness of their title they have built houses and made other improvements on their respective pieces or parcels of said lot to the value of many thousands of dollars. P. Phillips and John Selden for complainants: The mortgage was of an estate for life only. The reversion was not incumbered. Sedgwick vs. Lafflin, 10 Allen, 430. The fee descended to the heirs at law. Lafflin vs. Crosby, 99 Mass., 446. Under Maryland act of assembly, 1785, ch. 72, sec. 5, (Thomp. Dig., 127,) “it was not contemplated that more should be sold than was necessary to extinguish the debt on the mortgage.” Boteler et al. vs. Brookes, 7 G. & J., 143-152. The terms of the instrument in question confine the power of sale within the same limits. Before the rights of an individual can be bound by sentence, he must have notice. The Mary, 9 Cranch, 144, The Brig Ann, Id., 291; Taylor vs. Carryl, 20 How., 599. The Maryland acts respecting publication are retained by act Cong., May 3, 1802, sec. 1, (2 Stat., 193; Br. Dig., 234,) but the State legislature “ intended by these acts to introduce a remedy in certain cases, for which it.had been found to be in all cases beyond the power of the court to provide. The object was to substitute a per. sonal warning through the newspapers for a personal summons, in cases where the summons could not be served at all, or without great difficulty. ” McKim vs. Odom, 3 Bland, 429. The order of publication, granted June 13, 1862, was made returnable October 20, 1862. The bill was brought against Slocum, “a citizen of the State of Georgia,” as was believed, and publication prayed against him “ as a non-resident, as before stated, ” an affidavit being added from counsel. As under the proclamations of April 15, 1861, (12 Stat., 1258, appx.,) and Aug 16, 1861, (Id., 257,) and the act Cong., July 13, 1861, (Id., 1262, appx.) intercourse with the “ inhabitants" of insurgent territory had been interdicted, it appeared on the face of the bill that Slocum could neither see nor respond to the order of publication. (See Dean vs. Nelson, 10 Wall., 158.) Slocum, was transiently residing in this district, animo revertendi. He went South April 10,1861, and died November 9, 1862. He had no opportunity to return. The people of the two countries were at war. And his particular disposition could not be regarded. Prize cases, 2 Black, 687 ; Mrs. Alexander’s cotton, 2 Wall., 419; Coppell vs. Hale, 7 Id., 554. The decree which passed pro confesso bears date February 14, 1863. By it “the defendant is adjudged and decreed to pay to the complainant the said mortgage debt, interest, and costs of this suit, on or before the 1st day of April, 1863, and in default of such payment by the day limited, it is further ordered, adjudged, and decreed that the estate and interest of the defendant, in the proceedings mentioned, be sold. More than three months before, Mr. Slocum had expired. By that event litigation was in proper practice suspended. Story Ep. Pl., § 354, 364; 1 Hoff Ch. Pract., 370; Gilb. For Rom., ch. 9, p. 176. Thus, no proceedings can be had on a decree passed against an executor, as such, after his removal from the trust. Taylor vs. Savage, 1 How., 282. An execution cannot be issued and tested after the death of the defendant. Erwin’s Lessee vs. Dundas, 4 How., 58. Nor judgment of mandamus against one officer enforced against his successor. The Secretary vs. McGarrahan, 9 Wall., 298. The principle is applied to mortgages. Smith vs. Evans, 1 Dow., 25; Lane vs. Ershine, 13 Ill., 501, 503; Doe vs. McLoshey, 1 Alabama, 708, 725, 726. (See Ewald vs. Corbett, 32 Cal., 493, 499.) The decree being only against the defendant, who was non-existing at its date, cannot be said to conclude any one. Matthey vs. Wiseman, 114 Eng., C. L., 679. If, as in 4 How., p. 71, it be argued that “a purchaser ought not to be bound to know whether a party is dead or not,” we repeat what is said by the court, in the same case, at pp. 78, 79. Under any circumstances, Mrs. Slocum (now Mrs. Fraser) never liaving united in the mortgage, nor been made a party to the suit for sale, is entitled to redeem. Leonard vs. Millars, 23 Ill., 377; Wheeler vs. Morris, 3 Bosw., 424; Bell vs. The Mayor, 10 Paige, 56; Mills vs. Van Vooris, 23 Barb., 125. The nature of her rights is well stated in Denton vs. Nanny, 8 Barb., 624, 625. And “the redemption must be of the entire mortgage, and not by parcels. He who redeems must pay the whole debt, and he will then stand in the place of the party whose interest in the estate he discharges.” 4 Kent, 163. The points in respect to the tax-deed are omitted, as the court referred that matter to a jury-trial. Mr. Phillips filed a separate brief on the legality of selling more land than is necesary to pay the tax due, which is also omitted for the same reason. Walter S. Cox and I. G. Kimball for defendants. [MAJORITY — Mr. Justice Wylie,] Mr. Justice Wylie, after stating the case, delivered the opinion of the court: There appears one very serious defect in the title of the defendants upon the face of the record, a defect which was not brought to our attention upon the argument. The decree for sale of the property was passed on the 14th of February, 3863, and after adjudging in favor of the complainants’ claim, and requiring its payment on or before the first of April thereafter, in default whereof the property in question should be sold, it appointed the trustee in such default to make the sale, and then proceeded to prescribe the terms and manner of the sale. Among these terms is contained the following: “And on the ratification of such sale, and on the payment of the whole purchase-money, and not before, the said trustee, by a good and sufficient deed to be executed and acknowledged agreeably to law, shall convey to the purchaser of said property the interest of said defendant therein, free, clear, and discharged of all claim of the parties to this cause, and of any person or persons claiming by, from, or under them.” Now, it appears by the record that the sale made by Trustee Scrivener, in this case, has never been confirmed and ratified by the court, and hence, according to the express language of the decree, the trustee who succeeded Scrivener had no authority to make a deed to the purchaser. On 7th of November, 1863, the court ordered that the sale in question should be ratified and confirmed “ unless cause to the contrary thereof be shown on or before the first Tuesday of February next; provided a copy of this order be inserted in the Morning Chronicle, a newspaper printed in the city of Washington, once in each of three successive weeks before the first day of January next.” Here was an order out of the usual form and course in such cases. It was dated 7th of November, 1863, provided for the publication of notice in each of three successive weeks before the first day of January, and then, should no cause to the contrary be shown, for final ratification, not until the first Tuesday of February, three months from the date of the order. Without resorting to conjecture as to the reasons which may have had influence on the mind of the court for its caution in making the order in these terms — a caution which the character of the sale, and the absence of the party interested, in a time of war, might well have suggested — the plain fact appears on the face of the record, that no publication of the required notice was ever made in the Morning Chronicle, nor was any application ever made to the court to have the sale in question ratified and confirmed. Had such application been made it might have been the duty of the court, of its own motion, to refuse to confirm a sale of property which in 1861 had been assessed for taxes at a valuation of nearly 02,000, where the sale was for 0449.13, payable in currency greatly depreciated, and where the terms of payment where so easy to the purchaser as they were in this case, and where the debt to be paid was only 0100 and interest. Unless the sale be ratified by the court the purchaser acquires no estate in consequence of his bid, or the payment of the purchase-money, nor has the trustee authority to make him a deed. (See Alexander’s Ch. Pr., 146; 2 Daniels’s Ch. Pr., 1454.) Nor does this record show any act whatever on the part of the court which could be construed into ratification of the sale in question, even by implication. It has never so much as passed an order for the distribution of the fund produced by the sale. It was gross laches, therefore, on the part of these defendants, or their advisers, not to discover an essential defect such as this, apparent on the very face of their title, and on themselves the law imposes the consequences. We have thus far assumed that the parties complainant in this case are bound by the decree against the defendant Slocum, notwithstanding he was dead at the time it was passed, and such we consider the law to be. It was not the case of a personal decree, made against a party over whom the court had no jurisdiction; but a decree for the sale of real property, under the jurisdiction of the court, for the payment of a debt due by the ancestor of these complainants, through whom they claim, and which was secured by the lien of a deed of trust upon the property in question. In Grignor’s Lessee vs. Astor, 2 How. R., 338, Baldwin J., in opinion for the court says: “In cases in personam, where there are adverse parties, the court must have power over the subject-matter and the parties; but on a proceeding to sell the real estate of an indebted intestate, there are no adversary parties, the proceeding is in rem, the administrator represents the laud. (S. and R., 432.) They are analogous to proceedings in the admiralty, where the only question of jurisdiction is the power of the court over the thing, the subject-matter before them, without regard to the persons who have an interest in it.” We admit that this authority is not directly in point for the present case, except so far as to establish the jurisdiction of the court. Undoubtedly it is erroneous to make a decree against a man after his death, or to dispose of property under such a decree, after it has descended to his heirs, unless they have been made parties to the suit; but such a decree would not be void, for the subject-matter of the decree was within the jurisdiction. Notice by publication in such a case is proper as to non-resident parties, and in most cases is not required by the law. But of itself, no publication to non-residents can confer jurisdiction over them, nor can even personal service of notice through the mail, or by means of an agent, and a decree founded on such a notice would be absolutely void. But if the subject of suit be property lying under the jurisdiction of the court, a decree after such notice would bind the property. It would not be binding personally upon non-residents, but only in respect of their interest in the property. The notice then, of itself, is of none effect on the question of jurisdiction. If there be no property there is no jurisdiction. It is the subject-matter, then, alone which is the ground of jurisdiction. And where a statute requires notice to non-residents to be given, by publication, and a judgment or decree is passed affecting the property subject to the jurisdiction of the court, without the publication of the required notice, the decree or judgment, though erroneous, is not void; for of itself, notice to non-residents contributes nothing to the court’s jurisdiction. A purchaser at a sale under such a decree or judgment would take a valid title, although the decree or judgment might afterwards be reversed for its errors in a higher court, and notwithstanding the errors of the court might be palpable upon the record. (See Voorhees vs. Bank of United States, 10 Peters, 449, in addition to Grignor's Lessee vs. Astor, already referred to.) So far, therefore, as this case involves the jurisdiction of the court to make a decree for the sale of the property in question, we are of opinion that such jurisdiction did belong to it; and a purchaser bona fide, for value, would have taken a good title. The difficulty with the case of the defendants, in this respect, is that no sale was ever ratified by the court, and the trustee made the deed to the purchaser in disregard of the express restriction of the decree that he should make no deed except after the ratification of the sale by the court. Nevertheless, we are not disposed, under the circumstances of the case, to allow the complainants to enter into the fruits of other men’s labors, or to reap where they have not sown. In 1861, Slocum, their ancestor, was here holding an office under the Government, had purchased the lot in question, and had a clear title to it. He was a native of Mississippi, and a friend of the gentleman at the head of the Interior Department, where he was employed. The lot was at that time assessed for about $2,000. He mortgaged it for a loan of $100, to enable him to reach his friends, and left the District, after the civil war had in fact broken out in that part of the country “ where he would be.” He died during the war; the debt for which he had given security upon his lot was overdue and not paid. It was not known whether he was living or dead, or, if dead, who were his heirs; nor was it lawful or practicable to ascertain these facts. Nor was it possible to foresee the duration of the war, or its'effect upon property in this District. A bill was filed by the creditor, Mr. Cramer, with a view to enforce his lien, by procuring a judicial sale of the property for the satisfaction of his claim. The usual notice by publication was given to Slocum, as a non-resident, and in due time a decree by default was entered directing a sale of the property and making appointment of a trustee for that purpose. This trustee (or his duly-appointed successor) did make a sale of the property to J. Gray Jewell; and on payment of the whole of the purchase-money, made him a deed for it. The price paid by Jewell was very inadequate, but he thought, no doubt, that he was getting a valid title, at a low price. Shaw, the trustee, made his deed to Jewell, in pursuance of the sale, November 24,1864; consideration, $449.13. Jewell divided the lot into three parts; • one he sold to Prather on the 6th January, 1866, for $1,194.13; one other to Francis Miller, 12th of same month and year, for $1,147.80; and the other part to George Miller, January 2,1866, $1,147.80; in all, $3,489.73. The deeds made to these purchasers contain covenants of general warranty, and their aggregate amount of purchase-money is $3,489.73. At the time of these purchases the lot was wholly unimproved. Before making their respective purchases from Jewell, each of these defendants, George Miller, Francis Miller, and Leonard B. Prather, had the title examined by counsel, generally reputed to be competent, and they were advised that the title was valid. One of these gentlemen enjoys a very high reputation as an examiner of titles in this District. He expressed the opinion that, being a title under a chancery decree, it was good. Houses have been built, and other improvements made by these purchasers on their respective subdivisions of the lot in question, to the value of many thousands of dollars, expended by them in good faith, and in reliance upon the judgment of well-known experts on questions of title. Besides this, the war closed in the spring of 1865, and thereafter there was no obstruction to delay the plaintiffs from immediately looking after their interests in this District. At that time Jewell, the purchaser, claimed the title under the sale, but had expended nothing in improvements, and had paid but $449.13 for the property; $257.80 was yet in the hands of the trustee, where it still is; and this was the state of matters till early in January, 1866, when Jewell sold to the two Millers and to Prather their several parts of the lot. Had these parties made their appearance within six or even eight months after the close of the war, and made proper application to the court, the sale would have been instantly set aside, without loss or injury and but small inconvenience to any party. This laches on their part continued till the bill was filed in the present suit, which was in January, 1873, nearly eight years after the war had closed, these purchasers all the time expending their money and increasing their improvements, believing themselves secure, because a lawyer had told them it was a good chancery title. To permit complainants to redeem under these circumstances, without allowing for the improvements, would be to aid them, in spite of their own laches, to commit a fraud upon men who had expended their money in good faith, under a title which counsel learned in the law had advised them was good, and which to the unlearned seemed to be good. Fortunately for the justice of the case, the court, having been invoked for its assistance, is at liberty to extend its assistance upon such terms as will do no injustice. Under no circumstances will a court of equity allow itself to be made an instrument of wrong. Bather than lend itself to such a cause it will refuse to interfere, and leave the parties to their remedy at law; and if that would result in a fraud upon the defendant, it will interpose on his behalf. Although a mortgagee is not entitled generally to any allowance for his improvements, (Moore vs. Cable, 1 Johns. Ch. R., 385,) yet such allowance may be made under special circumstances, as when the mortgagee has acted in good faith, and under a mistaken impression that the right of redemption has been finally barred, as was held in Benedict vs. Gilman, 4 Paige’s R., 58, and Westmore vs. Roberts, 10 How. Pr. R., 51; or when the mortgagor has been slow to act, if not guilty of laches, and has thus led to a false impression by his silence, although he may have been ignorant of the circumstances which would have made it his duty to speak. (Mickle vs. Dillaye.) In commenting on the case of Moore vs. Cable, Chancellor Kent says, “ Lasting improvements in building have been allowed in England under peculiar circumstances, and they have been sometimes allowed in this country and sometimes disallowed,” (4 Com. 167;) and in a note at the same place it is further said that “all the cases agree that the mortgagee is to be allowed the expense of repairs, and beyond that the rule is not inflexible, but it is subject to the discretion of the court, regulated by the justice and equity arising out of the particular circumstances of each case.” In Hilliard on Mortgages the author says, “The rule refusing the allowance of lasting improvements has been subjected to some exceptions in special cases, as where the mortgagee makes such improvements supposing himself to be the absolute owner;” and in Neal vs. Hythorp, 3 Bland Ch. R., 590, the chancellor says, “ If the mortgagee have been long in possession, claiming adversely, and suffered to treat the estate as his own, and the mortgagor stands by and permits lasting improvements to be made, he shall pay for them.” On the like principle of justice is grounded the doctrine that where the mortgagor subsequently borrows more money from the mortgagee on bond, and dies, the heir shall not redeem without paying both debts. We are of opinion that, in cases like the present, the pend-ency of the war could not affect the rights of a bona-fide purchaser at a judicial sale, especially when the record does not disclose the status of the mortgagor to be that of a public enemy; since, as we have seen, the sale would be valid if the court had jurisdiction over the matter. But, according to the view we take of the case, it has become unnecessary to go into that question at all. As to the tax-title in the defendants, and which the complainants seek to have removed on tbe ground that' it is a cloud upon their title, we feel obliged to remit that controversy to be tried by jury at the circuit. The irregularities set out in complainants’ bill, showing a neglect or violation of certain provisions contained in the ordinances of the corporation by its officers, as to the time and mode of making out the assessment-lists, making entries in. the book, &c., are not of the kind to affect the validity of such a sale., A tax-sale is good if it corresponds exactly, in all particulars, with the act of Congress on the subject, although the officers may have neglected to fulfill certain requirements in regard thereto prescribed by ordinances of the corporation. That was determined by the Supreme Court in tbe case of Thompson vs. Lessee of Carroll, 22 How., 422. On the other hand, the record furnishes no evidence to enable us to determine on behalf of the defendants that their tax-title is a good one. A tax-deed of itself is no evidence of title. It is absolutely waste paper until the holder under it has shown that all the preliminary steps required by law have been strictly complied with. “The deed is not the title itself, nor even evidence of it. Its recitals bind no one. It creates no estoppel upon the former owner. No presumption arises upon the mere production of the deed that the facts it professes to set out had any existence.” Blackwell on Tax T., 430. In the present case we have before us no evidence to show that the tax-deed in question is either good or bad. Should that tax-title, however, be a valid one, it will put an end to present controversy. It is true that denfendants have filed no cross-bill in this cause, setting up a title under the tax-deed to Jewell, although in their answers to the allegations of the bill which avers that it .is void they do insist that it is a valid title and one under which they claim. It would be useless, considering this aspect of the controversy, to pass a decree allowing the complainants to redeem on the terms we have indicated, for if they were to redeem by paying defendants for their improvements, leaving open the controversy under the tax-sale, they might in the end lose all should it turn out that the defendants had a valid title under that sale. It will be necessary, therefore, to retain the cause for the present, and until an issue can be made up and tried at law whether that tax-title be valid or otherwise; and in that issue the defendants here should be the plaintiffs, as on them it will lie to make out the affirmative. Should the result prove favorable to the defendants in this cause, the bill in the present case will have to be dismissed. Should it be otherwise the redemption sought for by the complainants in this cause can be obtained on the terms we have already indicated. Mr. Justice MacArthur did not sit in this case, and Mr. Justice Olin did not take part in the decision.