Page:Federal Reporter, 1st Series, Volume 6.djvu/118

 106 FKDEKAL EEPOBTEE. �either of the mortgages; that in order to secure just and equitable bidding at the sale, the value of the bonds should be ascertained by proof, on reference to a^master before the sale, and that without such previous ascertainment of vahie no bidder can know what amount of bonds or coupons he can pay on his bid. In the fi.rst place it may be remarked that the provision in question in the deoree ia similar to that inserted in railroad mortgage foreclosure decrees in this cir- cuit, as I am advised by the circuit judge, whom, for cer- tainty of information, I have consulted on the point. Obvi- ously, the vahie of the bonds and coupons must depend on the value of the mortgaged property, and that value is best ascertainable by sale of the property. I do not see, there- fore, how it would be possible, or at least practicable, to determine the value of the bonds, or to determine what per- centage of value should be applied on the bid, before the sale transpires. There may be prior liens to be paid in the shape of intervening claims, and I cannot perceive how a proper and effectuai sale can be made, — if bonds are to be applied on the bid, — unless the court is permitted to fix the rate, after the sale is reported, at which bonds shall be received. And it would seem that an attempted ascertainment of value of the bonds, before the sale, for the purpose of fiiing the rate at which they may be applied on the bid, would be more likely to involve injustice, especially to small holders, than an ascertainment made subsequently, because before sale the only value susceptible of proof might be one merely nominal, while after the sale the value would be actually represented by a realized price. In this connection it is urged that the decree does- not determine what amount of bonds may be taken to apply on the bid, Whether it can be said, in strict- ness of definition, that the sale authorized by the decree is a cash sale or not, I think it is equivalent to that- The decree provides that $25,000 in cash shall be pa,id by the bidder at the tin^e of the sale; that after such payment the balance of the bid may he paid in bonds and coupons, or, as it is ex- pressed in another part of the decree j after the payment of «osts and expanses, etc., the rejuainder of the purchase money ��� �