telrttmony was, taken, (July', 1891j) thft wbole a1l19U1lt going f.om Vic1lel'lto'th1iI friend was:only:'.a.bout$l,600. lnclu!1Jng the !p1'Otlt.'.i, ,;HtiI:m, it should happen, that ,the buslne88: should have, barren before and prosperous after the failure does not appear., r"''Theevidence, seemsto1showtllat tho IndebtedneBs to TorJ)e, ,as well as tllat to: Bernhard. mentioned in the mortgage, was actual, and there is no evidence tti: show,. that theypeI'SOJlB1lJr, ,partlcipatedln any fl'l\.u!l, But their agent andlpl'cilClU'ator in the obt&lniJlg :the securitydldhave of it, if he was llota aellh'e,particlpantthereiD. and the notice he bad ,be imputed te>, those paftles. '" ,, ,> ' , i ' " ' "Theresult,is-that the mortgagelaheldvalid as to the bank and yoidas to the rest..<'.Fhe'fundin the handsotthe, assignee,Aarons, mould be applled in pa,vment of ,the ,debt to the banlt, and the balance: mould be among the general creditors who come in and,prove their claimsi and such wW be the decree of: the court...
for Smiley, Smith & Stevens,.for: appellees. and Judges, and BARR, Dis'
The, the court this 'case is cleal'lycorrect ,for the stated in the opinion of said court, which is made;a'part of the record. The facts andeircumstances of the ease as disclosed by the testimony fully establish the conclusi()n reached by the lower court. We do not deem it necessary the testimony 'ttl detail. It has been carefully examined to and considered, and fully sustains the findings on wb,ich the deoree was rested. The decree is affirmed, and the costs of the appeal will be taxed· against the appellant Louis E. Morris, trustee. The cause will be remanded, with instructions to the lowe:r court to proceed with the execution of its decree.
FIDELITY TRUST & SAFlllTY VA.ULT 1.
v. MOBILE ST. BY. 00." (CircUit Court,S. D. Alabama. January 4, 1893.)
A;pPEAL-""Eli'lI'EC1' ON COLLATERAL PROCEEDING&.
.An and supersedefl8 do not oust the jurisdiction of the lower court,ot preelu.de collateral or Independent proceedings..
So SAME---:COntRMATION 011' SALE. An supersedeas of a decree In respect to solicitors' fees In
a foreclosure proceeding do ,not preclude the lower court from passing on the question of confirmation 9fthe sale made under it.
CONFIRMATION-INADEQUAcY 011' PRICE.
Inadequacy of price alone is not a ground to set aside a judicial sale, unless so great as to shock· the conscience and excite the suspicion of the court. .
AS TO RESALE.",
Expression of .. well..-foundedi opinion by a wl1Jl.ess that the property would, on t:esale, b$g a much higher price, is not ground for setting aside a judicial sale. Inadequacy .of aeoompanled by lldditional qiroumstances of unfairness, growing out of accldent, or some trust relation. are good
.. SAME-AcTS OF" BIDDERS.
'Reported by Peter J.HamUton. Esq., of the Moblle, Ala., bar.
FI.DELITY TRUST .4SA:FET;Y,VAULT
:M:OBILE ST. BY. CO.
a,gainst: confirm\l-tion, but1;he tlwt that; JIloftgage bondholdersot a street-railway company, were known to have .authorlzed a committee. to bid up to' $400,000, a.n,d that this. report deterred others from bidding, is not good ground for !letting aside a 'SlUe of the property for $225,000 to the bondholders.
.., Bill by the FidelitY Trust & Safety Vault Company Q.gaimlttheMobile Street-Railway Company to foreclose a mortgage. B;eard motion to make absolute an Oi'der coJ;Lfirming the saJe of the railway proMrty. Granted. . F01-'opinion on motion to set asi<le service of a petition in the of a. cross bill flled by certain bondholders, see 53 Fed. G.L. & H. T. Smith and McCaleb & Lapeyre, for the motion. .Clark & Clark and Overall, Bestor & Gray, opposed.
TOULMIN, District Judge. As preliminary to this motion it Is suggested that the conrthas no jurisdiction to hear and decide it, because an appeal has been taken in the cause, and a supersedeas bond given with a stay of proceedings. The decree appealed from is one confirming the report of the special master, and decreeing the payment of money thereunder for solicitors' fees and other expenses, and was aftnal decree. The execution of that decree was superseded, but the supersedeas has nothing to do with the decree in which the equities of the cause were involved, and by which they were settled, nor does it preclude collateral Oi' independent proceedings. An appeal, where a supersedeas is obtained, does not preclude parties from prosecutihgcollateral or independent proceedings, (Amer. Dig. 1892, p. 285, § 1729;) and it is held that an appeal to the supreme court with a stay does not oust the jurisdiction of the lower court, (Amer. Dig. 1892, p. 288, § 1743; Briggs v. Shea, [Minn.] 50 N. W. Rep. 1037.) This motion is a separate and distinct proceeding from that which culminated in the decree from which the appeaJ in question was taken. It is based on grounds which have nothing to do with the issues involved in and settled by that decree. The purpose of the motion now submitted is not to raise any question going behind that decree or concluded by it. Whatever course may be taken by the appellate court as to the decree appealed from, whether it be affirmed or reversed, the question arising on this motion would neither be determined nor discussed. Tested by these rules, which are found laid down in Allen v. Allen, 80 Ala. 154, I am of opinion that the court has the jurisdiction to decide this motion. The gr9unds of opposition to the motion, as stated, are inadequacy of price and unfairness in the sale. If the property sold at an inadequate price, the inadequacy must be so great as to shock the conscience and to excite the suspicion of the court, or there must be an inadequacy' of price, with additional circumstances against the fair· ness of the sale, growing out of fraud, accident, or some trust relation of the parties. On the proof submitted as to the value of the property I am not convinced that it sold at greatly less than ita value; certainly the inadequacy of price is not so great as to shock the conscience and to excite the suspicion of. the court. :Herein-
adequacy of price Is not alone snt'llclent to set aside the sale, and the exprEl$$iOn of opinion, however well founded, that the property on a resale would bring a much higher price, is not sut'llcient. Min· ing Co. v. Mason, 145 U. S. 349, 12 Sup. Ot. Rep. 887; T. Burgess, 117 U. S. 180, 6 Sup. Ot. Rep. 686. Are there then any additional circumstances against the fairness of the sale? Have the purchasers taken any undue advantage? If so, of whom? Haa any party interested in the property been misled or surprised? There are some statements in the affidavits submitted, based on information and belief, that some of the buyers, who were bondholders, deterred other proposed buyers from bidding by creating the impression that they were going to bid $400,000 for the propertv. but these statements are too vague and indefinite for the court to act on them. The proposed purchasers are not named. What sum they were willing to pay for the property is not given. They do not testify in the matter. What was said by the buyers, or any of them, to create, or that tended to create, such impression, is not shown; and while I can well see that an im· pression might have prevailed that the bondholders might bid as much as $400,000, inasmuch as they had authorized their committee to bid as much as that sum, .and which seems to have been generally known, the circumstances show that. the conunittee was clothed with a discretion to buy the property at any price, limited only by the sum named. This statement, or the substance of such a statement, of itself cannot 1>('. said to be an act of unfairness, or an act that would raili!ethe presumption of fraud. However much I may regret that the property did not realize a larger sum, there is no evidence of such conduct on the part of the purchasers as would a:tford anygroW\d to justify the court in setting aside the sale. The motion to make the Qrder confirming the sale absolute is therefore granted.
UNITED STATES T. FERGUSON.' (Circult Court, S. D. Alabama. December 23, 1892.)
EQUITY PLEADINGS-INFORMAL ANSWER.
SAME-EFFECT OJ!' ANSWER.
A.t a hearing on the pleadings, embracing bill, answer denying its matethe bill will be dlsmissed.
swer must be taken as true,
In Equity. Submitted for decree ()n the pleadings. Bill dismissed.
M. D. Wickersham, U. S.Dist. Atty. John R. & C.W. Tompkins, for defendant.
Reported by PeterJ., BamUton, Esq., of the MobUe, Ala.,