696
FEDERAL REPORTER,
vol.' 4ft
and tl] ,nceforward there remained no right, ('present or prospective," to be affected or impaired. When its rights became forfeited (there being no pretense that the case is affected by the rights of any other railroad company than those herein spoken of) there came to an end the only condition imposed by congress upon the grant to the Southern Pacific Company of March 3, 1871. These views render it unnecessary to determine the question elaborately and ably argued by counsel as to whether there ever was a valid designation of the route of the proposed road of the Atlantic & Pacific Company. I concur in the dismissal of the amended bill in each case, without costs, and wish to add that I would not have written this brief opinion had I known the circuit judge was engaged in the preparation of an opinion; but as each of us reached the same conclusion in a separate examination of the cases, at his suggestion both opinions are filed.
INVESTMENT
Co.
OF PHILADELPHIA V. OHIO
& N. W. RCa. et al.
(CirCUit Court, S. D. Ohio, W D.
June 1, 1891.)
RAILROAD MORTGAOE-FORECLOSURE-ALLOWANCE TO COUNSEL.
Where in the foreclosure of a railroad mortgage the complainant is the holder of a majority of the bonds secured, and the trustee, by agreement with the complaimlnt, has declined to' act in the foreclosure proceedings, and is made a co-detendant, and full allowance has been made to the counsel of complainant and to the receiver fOI his services, all for duties which by the mortgage were assigued to the trustee, it was not error to refuse an allowance also to the trustee's counsel.
In Equity. Alexander & Green, for trustee. Howard C. Hollister, contm. SAGE, J. This cause is before the court upon an application by the trustee under the mortgage for compensation and for counsel feeft, to be paid out of the proceeds of sale of the defendant company's road under decree of foreclosure. The mortgage was made by the defendant the Ohio & North-Western Railroad Company to the defendant the Mercantile Trust Com.pany, to secure bonds issued by the first"named defendant company.' It is in the usual form. It provides that, upon the default of the mortgagor to pay its interest coupons within six calendar months after their maturity and after demand, the bonds themselves shall become due and payable, and after demand of payment the trustee shall, upon the written request of the holders of a majority, enter upon and take possession of the railroad, its equipments, and all the property included in: the mortgage, and operate the road for the benefit of the bondholders; and that said trustee shall, at the written request of the holders of a majGrity of the bonds, proceed to foreclose. The C0111-
INVESTMENT CO. OF PHILADELPHIA V. OHIO & N. W. R. CO.
697
plainant company is the holder of a majority of the bonds secured by the mortgage, and of other claims which are prior liens upon the mortgaged property. The foreclosure proceedings were, with the consent of the Mercantile Trust Company, conducted by the complainant. The trust company filed an answer to the bill, and to each of seven crossbills, which set up liens claimed to be prior to the mortgage. These answers are merely formal, and in terms leave the conduct of the cause to the complainant. Upon the complainant's motion, and with the consent of the trust company, a receiver was appointed shortly after the filing of the bill, and the road was transferred to his possession, and operated by him, under the direction of the court, until the confirmation of the sale. The statement of services rendered by counsel, which was filed with the application, shows numerous consultations with the officers and counsel of the complainant company with referenee to the proceedings in the cause, and frequent correspondence. It is urged in support of the application that, while there is no reported case in its favor, such allowances have been repeatedly made; citing Central Trust Co. v. St. Louis, A. & T. By. Co., where allowances were made to counsel for services rendered by them on behalf of the defendant companies; but, as it appears from the statement of counsel, those allowances were granted substantially on the consent of all parties to the litigation. That cause was pending in the eighth and fifth circuits, but the principal cause proceeded in the eighth. The same course was pursued in reference to an allowance to counsel representing some of the defendants in the suit of the .Mercantile Trust Co. v. klissouri, K. & T. By. Co., which was also in the eighth circuit. In that cause, too, the allowance was agreed upon by the parties, and the matter did not come before the court. In the case of Central Trust Co. v. Wabash, St. L. & Pac. By. Co., in the seventh circuit, an allowance was made by the court to the Mercantile Trust Company, cross-complainant. That case was like this, in that the proceeding was originally in the nature of an application for the appointment of a receiver; the ostensible purpose of the bill being to preserve the property for the benefit of all its creditors. The case is not reported. As stated by counsel, it was originally begun "by rather an anonymous proceeding on behalf of the defendant railway company." The Central Trust Company, as the mortgagee of the principal mortgage, was made a party defendant, but it had commenced an independent suit in the state court of Indiana. Shortly after the original bill was filed, that suit was removed to the federal court, and the causes were consolidated, and thereafter proceeded as a consolidaied cause. There were really no proceedings under the Wabash bill, excepting the appointment of a receiver. About the time that the Central Trust Company, complainant in the consolidated cause, was ready to take a decree of foreclosure, it was thought for the best interests of all concerned that a subsequent collateral trust mortgage executed to the Mercantile Trust Company should be foreclosed, and that company thereupon HnSW8red and filed its crossbill, (which was very short,) and the defendant company and the Cen-
698
FEDERALREPORTERjVOl.
46..
traJ Trust'{)ompany immediately answered, and Ii decree was thereuporr had.· The actual proceedings of the Mercantile Trust Company, as crosscomplainant,were vel'y simple. The matter ofcompenmtion and allowances o(thatcompany, and for'its counsel, ,vas referred to a special, master. In his printed report orthe proceedings in the cause he finds that counsel had rendered exception:d services to the\Vabash Company from the very inceptiOll of the litigation, hI' which they had been al-. lll\ved imd paid the sum of $3,000. The master reported that the services of counsel had greatly aided in rendering possible a speed)' ending of the litigation, and the saving of a considerable amount of money to the holders of the bauds secured by the mortgages to the Central Trust Company and the Mercantile Trust Company. He recommended an al. lowance for the services rendered. by counsel for both companies, and in the two different capacities in which they acted. The matter was carefully considered by the court upon exceptions to the master's relJort, on behalf of some of those who were largely interested in the property. The report was confirmed, with possibly some slight reductions in the amounts. According to the statements of counsel, which I have no, doubt are correct, allowances were granted in the same cause to counsel for the Wabash Company. It is urged in support of the application now made that the Mercantile Trust Conlpany declined to proceed in this cause at the express solicitation of the investment company, with the understanding that the trust company should become a cross-complainant. That course: it is of counsel for the comstated, was not pursued because of the plainant, on the ground that it would lead to a postponement of the ultimate result songht, namely, the forecloslll'e of the mortgage, and the sale of the property; the bill having been filed before the expiration of six montbs afterc1efanlt of pnyrnent of interest upon the bonc!s,and that the interests of all concerned would he furthered by the trust company merely continuing to be a party de.endant, and joining in·its answer in the prayer of the complainant's supplemclltal hill, which was tiled after the expiration of six montbs'default upon the bonds. The of coullsel is frank and full, :llld as to its lads is admitted to be true. It is proper, also, that it should bc stated that the complainant company does not oppose the application, neither does it formally consent. It is neutral, and su bmits the matter to the decision of the court. In the case of Ce/llrull'rust Cn. v. Wabr(sh, 81. L. & Pac. Ry. Co., last ubove referred to, tlw finding was that counsel for the )lercantile Trust Corll pally by their services not only aided in rendering possible a speedy ending of the litigation, hut also saved a considerablesnIH of money to the holders of the mOl'tgnge bonds; and the allowance seems to have been made Jor that reason. The case is altogether distinguishable from the case now berore the court. The Mercantile 'frustComp,my was not merely a defen:datlt, but was a cross-com plainant, representing the mortgage made to it as trustee. But that is not this case. Here the only aid was by declining to act, and'.by consenting that the proceedings should be con'.! ncted by the investment company. The remarks of Chief
INVESTMEXT
CO. OF
V. OHIO.& N. W. R. CO.
699
.Justice-REDF'IELD in.Sturgesv;' Knapp,' 31;Vt.54, Rre, pirectly applicable. Speaking of trustees under a railr:oad mortgage to secure the payment of bonds, he said: "We think it could scarcely escape the notice of any ona who had seriously andpatilllltly attempted to mastel'.tllis question that unti,l.theactual foreclosure of: the mortgage the trusts inyutved in the contract.'anel illJPOlli!d upon the narned, are enth'ely fidl,l9\llry,and executory'. At firs,t, .and so long as prompt payment is made, it is understood, in practice, illdeeLl, that the office of such trllstees is rather silent, and the dllties or the .trustees, by means of the negotiability of the bonds arid of the coupons attached; are ordinarily performed, or expected to be performed, by the corporation officers." In this cause at the outset a receiver was Appointed, and the property passed into his possession, and came under his management. The trustee never has had! possession of the pr()perty. It has been repeatt'd iy held in this circuit;'but not in any reported case, that the court will not allow compensation to the trustee unqer the mortgage to be paid out of the proceeds orsak Upon an a'pplicatibh very like the 'present one, in the unreported ,case of J<trnes R. Jesup .et al. v. Wabash, St. L. &; Pac. Ry. Co.et ai., in the United States circuit court at Toledo, for the northern district of Ohio, counsel 101' tbe'iniriority bondbolders,claiIlling to represent the trust, and who were defendants in the suit, were denied allowance or compensation out of the proceeds of sale of the mortgage property ·. ' Judge JACKSON made the ruling in that case. He concurs with methitt in this case counsel f()rtbe Mercantile Company are not entitled to any allowance or compensation out ofthe proceeds oUhe mortgage When the trustee under the mortgage has declined: to act or to proceed to foreclose, neither it nor its attoqley .can thereafter properly claim a]]owances upon foreclosure out of the proceeds. It does 110t matter for what reason the trustee declined to act. The suit was conducted by the investment company, as complainant, on behalf, also, of all the oth!'!r bondholders. Full allowance has been made and paid out of the proceeds of sale to its counsel, and fuHpayment has been made to the receiver for his services in caring for the property, and operating the road. All the allowances, therefore, which could have been expected had the trustee, in accordance with the stipUlations of the mortgage, taken possession of and operated the road, and by its counsel conducted the proceedings in foreclosure, have been made to those who upon the trust company's declination rendered services which were by the mortgage assigned to the trustee. The services rendered by counsel for the Mercantile Trust Company in preparing and. filing answers, in keeping an eye upon the proceedings, and in consulting from time to time with counsel for the complainants, were all doubtless well enough; but it carnot be said that they so contributed to the progress of the cause as to entitle them to be paid out of the prot>eeds of sale. Besides, they are not serviCes provided for in the deed oftrust. In Tracy v. Gravios R<tilroad Co., 13 Mo. App. 2().1, it was held that a trustee can receive payout of the trust fund for such services and expenditures only as are within the Hne of duties imposed upon him by the instrument
700
. //
. FEDERAL REPORTER,
vol. 4:6.
cteafillgthbi ,ttust.Tbe· couTtsaid that the true test was "whether the services and':expenses' for which he demands compensation' and reimbursement were either directed by the terms of the deedi·of trust, or were neaessary to ia performalWe of the dutie.s imposed upon him by that instrument." The! ;opinion of the court will be found to be instructive. The ruiing was affirmed in 84 Mo. 210, the supreme court there adopting the 'reasoning and approvingrthe conclusion reached by the court below. . The ap.plication. will be denied.
ARNOLD
et al. v.
et at. l
(Circuit CoUrt, E. D. NeW York. June 30; 1891.) 1. HUSBAND AND
One who asserts a marriage as the basis of a claim at law ·01' in equity must satisfy the court. upon the whole case, by a fair preponderance of proof, not necessarily when and whel'e such contract was made, but that at some time and place it was made.
OF PROOl".
Marriage may be proved by circumstantial evidence, by proof of the acts and declarations of the parties, of their cohabitation as husband and wife, holding themselves out to the world as sucb.f:luch course of life or declal'ations do not make a marriage, but are legitimate ground for inferring that there has been at some time a valid martiage contract. S. SAME-EvIDENCE-REi'UTE. On a disputed question as to the existence of a marriage, evidence of repute in the falI1ilies of the contracting parties is admission. 4. SAME. On the evidence in .this case, he£d that the marriage asserted by complainant was not proved.
2.
SAME-MARRIAGE-How PROVED-INFERENCES.
In Equity. Henry Rawcliffe, (John H. 17: Arnold, of counsel,) for complainant. Bliss & Schley, (W. S. Logan, of counsel,) for defendant. LACOMBE, Circuit Judge. This is an action brought by Leonora A. Amold, who claims to be a legitimate daughter of Blasius More Chesebrough, against the executors and trustees under the will of his mother, Margaret Chesebrough, deceased, such will directing that. upon the death of Blasius, (an .event which happened in 1866,) one equal half' part of her resid uaryestate should be paid to his lawful issue, if any. It is not disputed, upon the proofs, that the complainant's mother is Josephine, a daughter of Mrs. Rachel Cregier,nor that her father was Blasius M. Chesebrough. It appears that she was born (October 9, 1857) in the house of her grandmother, (Mrs. Cregiet,) in this city, and that for several years prior thereto her, lither and mother lived together, as man and wile, in hotels, in'boarding-houses, in apartments, and also at her grand-
lReported
EdwardG. Benedict, Esq., of the New York bar