Page:Federal Reporter, 1st Series, Volume 2.djvu/310

 EBOFHOLLEB V. ST. P., U. A M. B. 00. 803 �Demurrer to Bill. �Gilman & Clough, for plaiutiff, �Geo. B. Young, Geo. L. e Clias. E. Otis and R. B. Galusha, for defendants. �Nelson, D. J. The only question, raised by the demurrer, to be considered in this case is whether the bill is wanting in equity. The complainant makes no substantial charge of fraud against any trustee in the deed to secure the $15,000,000 issue of bonds, and his bill alleges no grievance which deter- mined the court to overrule the demurrers in the cases of Stricker v. Kennedy et al., Messchaert v. Kennedy et al., and Sahlgard v. Kennedy et al. Kennedy was never a trustee in this trust deed, and his acts as the agent of the committee of bond holders of the |15,000,000 issue are not subject to the criticism made in the other cases. �The fact that Kennedy, who is not a trustee in this deed, as agent of the foreign committee, entered into an agreement for the sale of the bonds held by the committee with Smith, Stephen Kittson and Hill, and consummated it, and such agree- ment contemplated the purohase of the railroad and appur- tenances, -would not call for the interference of a court of equity. These creditors could fairly combine to purehase the property of their debtor, and other bond holders and creditors are not by such combination deprived of the right to bid at a sale under the decree. �The charges made against the order of the court authoriz- ing the receiver to issue debentures and complete the unbuHt portion of the road, and the manner in whieh it was built and the amount of debentures issued and paid over for such construction, afford no ground of equitable relief. The court, before the decree was made, examined the objections in re- spect thereto, and only issued an amount of debentures equal to the cost of construction as clearly established by proof. �The charges against the decree are not such as in my opin- ion would authorize a court to disturb it, and the sale was made under the decree, for anything that appears in the bill, fairly and for more than the upset priee fixed by the court. That the purchaser was authorized to pay ail of the bid' ex- ����