108 FBDBBAL EEPOBTBB. �4. The petition alleges that the receiver in the foreclosure action bas filed a bill in this court, against D. M. Kelly and others, to set aside certain deeds of depot grounds, right of way, and other lands, ■which, it is claimed by the receiver, belong to the railroad company, and which, it is claimed by the defendants in said bill, belong to them ; that the right of the company to said property should be adjudicated in the foreclosure suit ; and that the title deeds thereof were of rec- ord before the bill in the foreclosure action was filed ; and it is further alleged in the petition that the said D. M. Kelly and others, who are defendants in the action brought by the receiver to settle the title of the lands in controversy in that action, were necessary parties in the foreclosure suit, and that without their presence in that suit their legal or equita- able rights to the lands cannot be eut ofif by the foreclosure decree, and a perfect title thereto given to the bidder at the foreclosure sale. �I am Tjnable to see how the rights of the petitioner are injuriously affected by the facts thus alleged. It is apparent, from the allegations she makes, that D. M. Kelly and others are claiming the lands in question as their own under a title adverse to the railroad company. If they succeed in the litiga- tion with the receiver, they will hold the lands. If they fail, then it will resuit that the lands fall into the general mass of property covered by the mortgages, and the title will pass to the purchaser at foreclosure sale. Sueh a question of adverse title could not be litigated in the foreclosure suit ; and, more- over, the petitione^*, in my opinion, divests herself of ail right to make this objection to the decree and the foreclosure proceedings, because, in connection ,with her allegations on the subject, she denies that the lands in question are the property of the railroad company, and of course thereby infer- entiaily affirms the right and title to the lands of the defend- ants in the action brought by the receiver. �6. But it is charged in the petition that the action to fore- close the mortgages in suit was fraudulently and collusively brought ; and in the consideration of this phase of the case it is necessary to take notice of the allegations of the petition. ��� �
