Page:Federal Reporter, 1st Series, Volume 3.djvu/189

 182 FEDERAL REPORTER. �in chancery, in the nature of an original bill, or a bill of review, has been brought in this court, and demurrer thereto sustained by Judge Nelson, which, of course, is subject to appeal.* I feel bound to say that if these parties are eutitled to any relief in regard to this transaction it is by some such bill as that, and not by a proceeding to go under the founda- tion of this suit by being made parties to it, and then seek- ing to controvert matters which were error in the proceedings. If there has been such fraud practiced upon these parties by their trustees as -would justify any relief in connection with that suit, it must be by such a bill as that, ■whereby they corne in and set up their own interest, and show how they were cheated and defrauded. But I must say — I think I have a right to say — perhaps it may be of value in further litigation, (although I would not be bound by it in the supreme court,) that I have not seen such evidences of fraud in this proceed- ing as to justify the court to set aside this sale. �It seems to me that here was a case of a mutual interest by bond holders and others at hazard, whose purpose and ob- ject was to have that road sold to satisfy the bonds. AU of them must have desired that the road should be sold to sat- isfy their debts. �I have already myself decided, on a plea in the original suit concerning the removal of the first trustees, and the substitu- tion of others, that that was rightfully done. Of course, I think BO.now. The road ought to have been sold; It was the duty of the trustees to procure its sale as soon as possible. They did, with great energy and perseverance, proceed in this court, and finally obtained, after years of litigation, a sale of that property, for the purpose of paying these debts. A sale was had, and it is said that one reason why it should be set aside was that it was sold for an inadequate sum. It was sold for a sum above what the court fixed, as chancery prac- tice calls it, as an "upset price." �Of course, the court, in fixing an upset price, intended to say that it was better that it should sell at that price than not to eell at ail, and the court had taken the necessary means ta �*See Kropholler v. Kennedy, 2 Fbd. Eep. 302. ����