(concurring):
I concur with my brother Hotchkiss in his opinion, as he has demonstrated that the various agreements between these railroad companies and the New Orleans Terminal Company were not intended as security for the payment of the various installments of interest as they should become due, or for the performance of the obligations assumed by the railroad companies, but that the sole object of the whole transaction was to secure to the contracting railroad companies certain terminal facilities in the city of New Orleans so long, as both companies should meet the necessary obligations which were required to attain that object, and upon the failure of either company to fulfill such obligations the company not in default should be entitled to control and use such facilities. The Terminal Company was organized to accomplish *314that purpose. Its whole capital stock was issued to the trust company as trustee by an agreement between the parties. The trustee was to devote that stock as required by the railroad companies. The stock was not separated so that one-half of it belonged to one company and the other half to the other company; but it was to be held by the trust company as trustee for the mutual benefit of the contracting parties so long as each of the contracting parties performed the obligations which it had assumed. Under the lease from the Terminal Company the right to use the interests of the Terminal Company depended entirely upon the.performance of such obligations and the company in default at once lost its right to use the property or to control the stock held by the trust company as trustee, and the railroad company not in default became vested with the title to all the stock in the hands of the trustee. This stock represented no outlay by either company, and the parties, by the most elaborate provision, had agreed that no other corporation or individual could use these facilities, except with the mutual consent of both parties to the agreement. So that under these agreements I cannot see that the title to any portion of this stock ever vested in the Frisco Company. That company had the right to use the terminal facilities so long as it complied with the obligations which it had assumed, but its rights to use the property, or to have any interest in the stock being conditioned upon the performance of such obligation, by the express provision of the contract between the parties any right to either the stock or the terminal facilities terminated upon its default. It is not intended to question the power of a court of equity to relieve from a forfeiture or penalty, or to give to any party to such a contract a right to redeem; but this action is not to obtain such relief. The plaintiffs do not seek to subject themselves as receivers to the obligations imposed upon the railroad companies by the contracts in question, and neither have offered nor now offer to comply with the obligations as to which they have defaulted. And so, it seems to me that admitting all the allegations of the complaint the plaintiffs would not be entitled to judgment in their favor, but in addition to this it seems to me that the plaintiffs have no standing in court to any judgment enforcing this con*315tract. One of the contracting parties was the Frisco Railroad Company. That company has become insolvent and the plaintiffs have been appointed receivers of its property. Upon their appointment as receivers they had a right to adopt this contract and undertake as receivers to carry it out, in which event they would be entitled to the advantages of the contract on complying with the obligations imposed upon the railroad company of which they were receivers. The record shows, however, that they have refused to accept the contract and have refused to be bound by its conditions. They were not bound to take it over, not bound to accept the property rights which were secured to the railroad company by the contracts, and having absolutely and intentionally refused to accept the contract and its obligations, I do not understand that they are in a position in a court of equity to enforce the contract as against the other contracting parties. It seems to me that the case is analogous to a lease of real property by which a lessee is entitled to the use of the property upon payment of rent, or a compliance with other conditions. The receiver of the property of the lessee is not obliged to take possession of the property and accept the lease with its obligations. If he accepts it, he is bound by the terms and conditions of the lease, but if he refuses to accept it and refuses to comply with the terms and obligations imposed upon the tenant, he certainly, cannot appear and object to the landlord of the premises resuming possession of the property and terminating the lease. The San Francisco Railroad Company is not a party to this action and asks for no relief. The receivers who have repudiated the contract and refused to be bound by its terms and conditions now ask to restrain the other parties to it from proceeding under it and enforcing it as against the defaulting railroad company. It seems to me clear that under those conditions the receivers have no standing in court to enforce the contract and, therefore, cannot maintain this action.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.