Opinion of the Court. Bank v. Carpenter, 41 Iowa, 518, 521. The courts have also expressly held that taxes are assignable. Merrill v. Welcher, 50 Iowa, 61. Merrill in that case was in the precise condition of Sully in this. The act of 1874, which was the foundation of the holding in Merrill v. Welcher, is still in force. See also Goodnow v. Stryker, 61 Iowa, 261; Goodnow v. Moulton, 51 Iowa, 555; and Goodnow v. Wells, 54 Iowa, 326.-II. The trustees and the treasurer are not interested with Mr. Sully. So far as they have an interest, the facts show that it is against him. See Barnes v. Marshall County, 56 Iowa, 20. See also Harter v. Kernochan, 103 U. S. 562, and Vimont v. Chicago & Northwestern Railroad, 17 Northwestern Rep. 31, as to citizenship of parties in cases like this. The company is not a necessary party. The issuing of the stock is not a condition precedent to the payment of the tax, or the receipt of the collected money by the railroad or its assignee.-III. The application for removal was made in time. Suits in equity are not triable in Iowa until the second term. § 2745 Code. No removal can be made until after joinder of issue. Stanbrough v. Griffin, 52 Iowa, 112; Bosler v. Booghe, 54 Iowa, 251. In the Drennan case there had been submission on demurrer; but unlike the circumstances in Alley v. Nott, 111 U. S. 472, it was not within the discretion of the court to enter final judgment on overruling the demurrer. The statute gives the party the right of reply without leave of court. § 2653 Code. These are regarded as interlocutory rulings, which do not defeat the right of removal. Stone v. Sargent, 129 Mass. 503. Mr. H. S. Winslow, L. C. Blanchard, and George C. Morgan for appellees. MR. JUSTICE MILLER delivered the opinion of the court. He recited the facts as above stated, and continued: We think the order remanding the case was well made. 1. Mr. Sully is the only defendant who is not a citizen of Iowa. The other defendants, against whom relief is sought, are the railroad company, the trustees of Prairie Township, and the treasurer of the county. All of these are proper Opinion of the Court. parties, and are necessary parties, against whom positive and affirmative relief is sought. Without deciding whether the railroad company could assign the right to sue for and enforce these taxes to Mr. Sully, it is sufficient to say that the assignment did not carry that right to him discharged of the equities between the company and the tax-payers, as if they had been negotiable bonds. To any suit, therefore, to invalidate this tax the company was a necessary party. It is especially so in equity, where the matter set up to defeat the tax, as in this case, was the failure of the company to comply with the conditions of the vote, and its false and fraudulent representations by which the vote was secured. In such a suit the company has a right to defend against these allegations, and the plaintiffs have a right that the company shall be bound by the judgment in the case. The interest of Sully and the company in this controversy are the same, and are both opposed to the interests of defendants. This railroad company is organized under the laws of Iowa, and is a citizen of that State as well as plaintiffs. 2. The township trustees are also citizens of Iowa. These are not nominal parties and their interest is not identical with that of plaintiffs. What may be their personal wishes is not known, nor is it material. They are sued in regard to their official position, to restrain them in the threatened exercise of their official authority, to the prejudice of plaintiffs. The exercise of this power lies at the root of plaintiffs' case, and of defendants' rights. The statute of Iowa which authorizes this vote by a township declares that the money collected under it shall be paid out by the county treasurer, "at any time after the trustees of the township, or a majority of them, shall have certified to the county treasurer that the conditions required of the railroad and set forth in the notice for the special election, at which the tax was voted, have been complied with." Until this is done no right to the money accrues to the railroad company or any one else. The act here required of the trustees is not a mere ministerial one. It requires them to ascertain and decide what was required of the company by the notice, with the meaning of its Opinion of the Court. terms, and, when they have construed these, to ascertain, as a matter of fact, whether they have been complied with. So important is this action to Sully and to the railroad company, that the bill alleges they are seeking to drive them to make the certificate by threats of expensive litigation, and it is said, in the brief, that Sully has resorted already to a writ of mandamus. Are these trustees nominal parties? Are they, in their official action, on the same side of this controversy with plaintiffs? If they were there would be no necessity to sue out an injunction to prevent them from issuing this certificate. If there is any nominal party, or any party unnecessary to the relief sought by plaintiffs, it is Sully, for if plaintiffs can procure a decree enjoining the trustees from making that certificate, their relief is sufficient, if not complete. So of the treasurer, Warren, who, so far from siding with plaintiffs in the suit, has joined Sully and the railroad company in a demurrer to the bill, and in his answer denies the merits. The case of Harter v. Kernochan, 103 U. S. 562, is cited in opposition to this view of the case. But in that case negotiable bonds had been issued and were in the hands of Kernochan as a bona fide holder. The case between him and the township of Harter was a very different one from the present case. In that case the whole right was vested in Kernochan, and the whole matter in controversy could be determined between him and the township. In the suit as brought in the State court in that case the officers who were served with the writ made default, and a notice by publication against the unknown owner of the bonds being unanswered, a default was taken against them and a decree made enjoining all proceedings to collect the bonds. Under a statutory provision Kernochan came in due time, and, alleging himself to be a holder of the bonds, the default as to the unknown owner was set aside, and he was permitted to answer. As to the other defendants, they were now out of the case, and Kernochan being a citizen of another State, removed the case into the Circuit Court of the United States. Statement of Facts. The difference between the two cases is obvious. The judgment of the Circuit Court remanding the case is affirmed. The cases of Sully v. Manning, and Sully v. Matthews, submitted with the foregoing, are governed by the principles announced in it, and are accordingly Affirmed. AVEGNO & Others v. SCHMIDT & Others. IN ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. Submitted January 12, 1885.-Decided January 26, 1885. A decree confiscating real estate under the confiscation act of July 17, 1862, 12 Stat. 589, has no effect upon the interest of a mortgagee in the confiscated property. A District Court of the United States in proceedings for confiscating real estate under the act of July 17, 1862, 12 Stat. 589, had no jurisdiction to pass upon the validity of a mortgage upon the estate proceeded against. The well established rule in Louisiana that where a mortgage contains the pact de non alienando, the mortgagee may enforce his mortgage by proceedings against the mortgagor alone, notwithstanding the alienation of the property, applies to an alienation by condemnation in proceedings for confiscation, and as against the heirs at law of the person whose property is confiscated. Shields v. Schiff, 36 La. Ann. 645, approved. The heirs at law of a person whose life interest in real estate was confiscated under the act of July 17, 1862, take, at his death, by descent, and not from the United States, under the act. This was an action brought in the Civil District Court of the Parish of Orleans, in the State of Louisiana, by the plaintiffs in error, heirs of Bernard Avegno, deceased, two of whom, being minors, were represented by his widow, as their tutrix, against the defendants in error, to establish their title to certain real estate in the city of New Orleans, and to recover possession thereof. The case was tried by the court without a jury and judgment was rendered for the defendants. Upon appeal to the Supreme Court of the State, the judgment of the Civil Statement of Facts. District Court was affirmed. To reverse that judgment of af firmance, the plaintiffs brought this writ of error. The pleadings and evidence disclosed the following facts: On April 3, 1862, Bernard Avegno, being the owner of the property in dispute, executed a mortgage thereon to Israel C. Harris to secure promissory notes made by Avegno, payable to his own order and indorsed by him, amounting in the aggregate to $36,500, which he delivered to Harris. The mortgage contained the pact de non alienando, by which the mortgagor agreed not to sell, alienate, or encumber the mortgaged property to the prejudice of the mortgagee. The notes and mortgage were afterwards transferred by Harris to Charles Morgan. The mortgage being still in force on January 20, 1865, the United States filed, in the District Court for the District of Louisiana, a libel of information against the mortgaged property, of which Bernard Avegno was still the owner, to condemn it as confiscated, under the act of July 17, 1862, 12 Stat. 589, entitled "An Act to suppress insurrection, to punish treason and rebellion, and confiscate the property of rebels, and for other purposes," for the offences of its owner, Avegno. A writ of seizure was issued to the marshal, who, in his return, dated February 14, 1865, stated that he had seized and taken into his possession the property libelled. Morgan, the mortgage creditor, intervened in the suit for confiscation, claiming to be paid out of the proceeds of the property the amount due on his mortgage. The District Court, on August 1, 1865, made a decree condemning the property in question as forfeited to the United States, and ordering it to be sold, and dismissing the intervention of Morgan, on the ground that his mortgage "could not be acknowledged." The decree of condemnation made by the District Court was not followed by a sale of the forfeited premises, nor were any proceedings taken under it. Afterwards, on June 25, 1867, Morgan filed his bill in the Circuit Court for the District of Louisiana against Avegno, for the enforcement of his mortgage. On July 11 following, the court made a decree, under which, on December 21, 1868, the property was sold by the marshal and purchased by Morgan, |