# Opinion — Kansas City Southern R. Co. v. Guardian Trust Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1916
- **Citation:** 240 U.S. 166

## Text

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KANSAS CITY SOUTHERN RAILWAY COMPANY
v. GUARDIAN TRUST COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS YOR THE
EIGHTH CIRCUIT.

No. 85. Argued December 13, 14, 15, 1915.—Decided February 21, 1916.

A reorganization scheme adopted upon the foreclosure of a mortgage
of a railroad company and a purchase thereunder which provides
substantially for the stockholders of the company, but which makes
inadequate provision for its unsecured creditors, cannot be sustained;
and in this case, held, that the purchaser was chargeable with such
unsecured debts. Northern Pacific Ry. v. Boyd, 228 U.S. 482.

One owning both stock and floating debt of « company whose property
is under foreclosure and who assents to a scheme of reorganization
which does not on its face show that it unduly provides for the stock-
holders and does not. adequately provides for the unsecured creditors
is not precluded from sabsequeutly claiming that for such reason
the property is still chargeable after the sale with his unsecured
debt.

On the facts of this case, held, that the party attacking a reorganiza-
tion scheme as not adequately protecting unsecured creditors while
providing for stockhoiders was not barred by laches.

Even though reorganiza‘ion schemes must be framed so as to induce
parties interested to come in and furnish fresh money, and courts
should avoid artificial scruples in considering such arrangements,
substantial justice must be done and well settled rules of equity
must not be transgressed.

210 Fed. Rep. 696, affirmed.

x96

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KANSAS CITY RY. ». GUARDIAN TRUST Co. 167
240 U.S. Argument for Appellants.

TuE facts, which involve the validity of a scheme of
reorganization adopted upon the foreclosure of a rail-
road company and a purchase of the same which provided
for the stockholders but left. its unsecured creditors
inadequately provided for, are stated in the opinion.

Mr. S. W. Moore and Mr. Samuel Untermyer for ap-
pellants:

The plan of reorganization is binding upon the Trust
Company because it actively participated in the plan and
greatly benefited by it in the exchange of its own securities
in the old companies for those of the Southern Company.
Equity will not permit the Trust Company to retain the
benefits of the plan and at the same time attack it as fraud-
ulent. It cannot claim both under and against the plan.

The application of the doctrine of “quasi-estoppel ”
or of estoppel by the acceptance of benefits is fatal to any
right of recovery on the part of the Trust Company.
Compton v. Jessup, 167 U.S. 1; Daniels vy. Tearney, 12
Otto, 415; Farmers’ Bank v. Groves, 12 Howard, 51; Gaddes
v. Pawtucket Institution, 80 Atl. Rep. 415; Inter. Con-
tracting Co. v. Lamont, 155 U. 8. 303; Loy v. Alston, 172
Fed. Rep. 90; North Ch icago R. R. v. Chicago Traction Co.,
150 Fed. Rep. 612, 626; Post v. Beacon Co., 84 Fed. Rep.
371; Sage v. Finney, 135 S. W. Rep. 996; Seminole Se-
curities Co. v. Southern Ins. Co., 182 Fed. Rep. 85; State v.
Bank, 95 N. W. Rep. 1116; Shackleton y. Baggaley, 170
Fed. Rep. 57, 59; Towers v. A frican Tug Co., L. R. 1 Ch.
1904, 558; United States vy. Hodson, 10 Wall. 395: United
Slates v. Morse, 218 U.S. 493; Winslow vy. Railroad, 208
U.S. 59; Wormser vy. Metropolitan St. Ry., 76 N. EB. Rep.
1036.

The doctrine of equitable election is a complete bar
to a recovery by the Trust Company. Codrington vy.
Lindsay, 8 I. R. Ch. App. 578, 587; Merchants’ Bani: V.
Sexton, 228 U.S. 634.

168 OCTOBER TERM, 1915.
Argument for Appellants. 240 U.S.

The doctrine of equitable estoppel is also a complete
bar to a recovery by the Trust Company. Bank v.
Heckman, 148 Indiana, 490; Canton Co. v. Rolling Miil,
155 Fed. Rep. 321; Farmers’ Trust Co. v. Railway Co.,
120 Fed. Rep. 1006; Fiske v. Carr, 20 Maine, 301; Gutz-
weiler v. Lackman, 23 Missouri, 168; Jacobs v. Lumber Co.,
158. W. Rep. 236; Jessup v. Hulse, 21 N. Y. 168; Kahn v.
Peter, 16 So. Rep. 524; Matthews v. Murchison, 15 Fed.
Rep. 691; Mitchell v. Mitchell, 61 Atl. Rep. 570; Olliver
v. King, 8 De G., M. & G. 110; Perisho v. Perisho, 71
Ill. App. 222; Rapalee v. Stewart, 27 N. Y. 310; Reagan
v. First National Bank, 61 N. E. Rep. 575; Richards v.
White, 7 Minnesota, 345; Smith v. Espy, 9 N. J. Eq. 160;
Symmes v. Union Trust Co., 60 Fed. Rep. 830; Thompson
v. Cohen, 127 Missouri, 215; Vose v. Cowdrey, 49 N. Y.
336.

Under the rule of the Boyd Case, 228 U. S. 482, the
Trust Company is not entitled to recover.

The Trust Company is barred from a recovery in this
action by its covenant that it would not hold the new com-
pany for the debts of any of the old ones. C., R. J. & P.
Ry. v. Howard, 7 Wall. 392; L. N. A. & C. Ry. v. Louisville
Trust Co., 174 U. 8. 674; Medill v. Snyder, 58 Pac. Rep.
962; Nor. Pac. Ry. v. Boyd, 228 U. S. 482; Stone v.
Cook, 179 Missouri, 534; Young v. Young, 27 Atl. Rep.
627.

The mortgage indebtedness of the Belt Company was
$1,000,000. It was sold at foreclosure sale for $1,000,000,
which the master found was the fair market value at that
time. Under these circumstances, the Trust Company,
as a creditor of the Belt Company, has not been injured
and has no right to complain.

A resulting trust was created in favor of the Railway
Companies paying for the properties deeded to the Cen-
tral Company, and this equitable interest passed under the
after-acquired property clauses of their mortgages. The

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KANSAS CITY RY. v. GUARDIAN TRUST CO. 169
240 U.S. Argument for Appellants.

Central Company acquired the properties subject to this
trust, and the interest of its stockholders was likewise
subject thereto. The Trust Company acquired the stock
of the Central Company with a knowledge of these facts,
and its equities, therefore, are subordinate to those of the
Southern Company. Albright v. Oyster, 140 U. S. 493;
Augusta Rd. Co. vy. Kittel, 52 Fed. Rep. 63; Bear Lake
Irrigation Co. v. Garland, 164 U.S. 1, 15; Central Trust Co.
v. Kneeland, 138 U. 8. 414; Condit v. Maxwell, 142 Mis-
souri, 266; Ducie v. Ford, 138 U. S. 587 ; Farmers’ Trust Co.
v. Denver R. R., 126 Fed. Rep. 46; Guaranty Trust Co. vy.
Atlantic &c. R. R., 138 Fed. Rep. 517; Lauter v. Trust Co.,
85 Fed. Rep. 894-903; McGourkey v. Toledo R. Co., 146
U. S. 536; New England Water Works vy. Farmers’ Loan
& Trust Co., 136 Fed. Rep. 521; Osborn v. Perkins, 122
Fed. Rep. 127, 131; Sanford v. Loan Society, 80 Fed.
Rep. 54; Toledo, Delphos &c. R. R. v. Hamilton, 134 U.S.
296; Wade v. Chicago R. R., 149 U. §. 327; Wade v. Se-
well, 56 ked. Rep. 129; Watson v. Bonfils, 116 Fed. Rep.
157.

Even if it should be held that the Trust Company has a
right of recovery, it should be limited to such equitable
terms as in the opinion of the court should have been
offered at the time of the reorganization.

There was no exception to the Master’s report in the
court below challenging the correctness of his finding that
the Southern Company was not liable for the floating in-
debtedness of the Belt Company. The decision of the
Court of Appeals that such finding can be reviewed in an
appellate court in the absence of exceptions is in conflict
with the decisions of the courts of appeal of other circuits
and with the rulings of this court. Brockett v. Brockett,
3 How. 692; Burns v. Rosenstein, 135 U. 8. 449: New
Orleans v. Fisher, 91 Fed. Rep. 574; Columbus R. R. Ap-
peals, 109 Fed. Rep. 117, 219: Coghlan v. South Car. R.
Co., 142 U. S. 101, 115; MeMicken vy. Perrin, 18 How.

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170 OCTOBER TERM, 1915.

Argument for Appellee. 240 U.S.

504, 587; Medsker v. Bonebrake, 108 U.S. 66, 72; Provident
Trust Co. vy. Camden Ry., 177 Fed. Rep. 854, 859; Sanford
v. Embry, 151 Fed. Rep. 977, 982; Sheffield Ry. v. Gordon,
151 U.S. 285, 290; Story v. Livingston, 13 Pet. 359, 366;
17 Ene. Pl. & Prac. 1047; 2 Foster’s Federal Practice,
§ 315; Topliff v. Topliff, 145 U. S. 156; 2 Street on Fed.
Eq. Prac., §§ 1476, 1486.

The action of the Court of Appeals is final so that an
application for certiorari at this time is not premature.
Beasley v. Tex. & Pac. Ry. Co., 191 U. 8S. 492; Denver v.
N.Y. Trust Co., 229 U.S. 132; Harriman v. Nor. Securities
Co., 197 U. S. 244; Merrill v. National Bank, 172 U. 8.
131.

Mr. Frederick W. Lehmann and Mr. George H. English,
Jr, with whom Mr. Edward P. Gates and Mr. Walter C.
Clephane were on the brief, for appellee:

The property of the Belt Company was a trust fund to
which the creditors were entitled in priority to the stock-
holders. Central Imp. Co. v. Cambria Co., 201 Fed. Rep.
811; Same v. Same, 210 Fed. Rep. 696; North. Pac. Ry. v.
Boyd, 228 U.S. 482.

The amount bid at the foreclosure sale of the Belt
property was no evidence of its value. Investment Regis-
try v. C. & M. E. R. Co., 212 Fed. Rep. 504; North Pac.
Ry. v. Boyd, 228 U. S. 482; $8, Art. 12, Const. Missouri;
§ 962, Rev. Stat. Missouri, 1899; Shickle v. Watts, 94
Missouri, 410; Moffit v. Hereford, 132 Missouri, 513;
Louisville Trust Co. v. Louisville Ry., 174 U.S. 674.

The plan of reorganization provided for the payment
of the debts of the old companies.

The estimate as to the floating debt was not intended
as a limitation upon the amount to be paid under the
plan.

The provision for the payment of debts made by the
plan was not limited by the interests of the bondholders.

Sate ee

KANSAS CITY RY. v. GUARDIAN TRUST CO. 171

240 U.S. Argument for Appellee.

There was no exclusion of creditors who were also bond-
holders and stockholders.

All the creditors save the Trust Company were paid
and the Trust Company was paid in part.

The Trust Company was entitled to enforce the provi-
sions of the plan as a contract made for its benefit. Second
National Bank vy. Grand Lodge, 98 U. S. 123; Johns vy.
Wilson, 180 U. 8. 440; § 1729, Rev. Stat. Missouri, 1909;
Meyer v. Lowell, 44 Missouri, 328; Beattie M fg. Co. v.
Clark, 208 Ibid. 89,

There was no covenant by the Trust Company that it
would not hold the new company for any of the debts of
the old. Webster v. Ins. Co., 53 Oh. St. 558; Hobbs v.
McLean, 117 U. §. 567; United States v. Cent. Pac. Ry.,
118 U.S. 235; Noonan v. Bradley, 9 Wall. 394.

The Trust Company was not barred as a creditor by
participating in the plan as bondholder and stockholder.

The Southern Company was liable as being a consolida-
tion of the old companies. See § 1059, Rev. Stat. of Mis-
souri, 1899; Leavenworth County v. Railroad, 134 U. 8.
O88; State ex rel. y. Lesueur, 145 Missouri, 594; Wells vy.
Electric Co., 108 Mo. App. 607; Barrie v. United Railways,
138 Mo. App. 557; Johnson v. United Railways, 247
Missouri, 326;C. S.F. & C. Ry. v. Ashling, 160 Illinois, 373;
Shadford v. Detroit Ry., 130 Michigan, 300.

The ‘Equitable Terms of Recovery” now suggested
by the Southern Company are very inequitable.

The lands of the Central Improvement Company did
not pass under the after acquired property clause of the
Belt mortgage. H umphreys v. McKissock, 140 U. S. 304;
Pardee vy. Aldridge, 189 U. §. 429; Smith v. McCullough,
104 U.S. 25; Railroad vy. Coffin, 50 Connecticut, 150; Dens-
more v. Railroad, 12 Wisconsin, 649.

Even though the exception to the Master’s report did
not formally and direetly challenge the correetness of his
finding, which was one of law, that the Southern Company

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172 OCTOBER TERM, 1915.
Opinion of the Court. 240 U.S.

was not liable for indebtedness of the Belt Company,
none the less in the circumstances of the case it was com-
petent and proper for the court to consider and determine
the question upon its merits. Guardian Trust Co. v.
Kansas City Southern Ry., 201 Fed. Rep. 811; Central
Imp. Co. v. Cambria Co., 210 Fed. Rep. 696; Sheffield Ry.
v. Gordon, 151 U.S. 285; 17 Enc. Pl. and Prac. 1048; 2
Daniel Chane. Pl. and Prac. 1314; Himley v. Rose, 5
Cranch, 313; Burke v. Davis, 81 Fed. Rep. 907; Celluloid
Mfg. Co. v. Cellulite Mfg. Co., 40 Fed. Rep. 476; Gordon v.
Lewis, 2 Sumner, 143; Brooks v. Robinson, 54 Mississippi,
272; Haymond v. Murphy, 65 W. Va. 616; Webster v. Cad-
wallader, 133 Kentucky, 500; Lehman v. Powe, 95 Missis-
sippi, 446; Von Phalen v. Winterbotham, 203 Illinois, 202.

There is no reason of law, policy or morals for preferring
stockholders to general creditors in the reorganization of
railroad properties.

Mr. Harry S. Mecartney, with whom Mr. Newell H.
Clapp was on the brief for intervening stockholders.

Mr. Justice Hotmgs delivered the opinion of the court.

This is an appeal from a decree in which the Circuit
Court of Appeals decided that the Guardian Trust Com-
pany as an unsecured creditor of the Kansas City Subur-
ban Belt Railroad Company was entitled to charge the
appellant for the Belt Company’s debt, because the re-
organization scheme, adopted upon a foreclosure of a
mortgage of the Belt Company’s property and a purchase
by the appellant, left the unsecured creditors inadequately
provided for while it made a considerable provision for
the stockholders in the Belt Road. Guardian Trust v.
Cambria Steel, 201 Fed. Rep. 811; 120 C. C. A. 121. 210
Fed. Rep. 696; 127 C. C. A. 184. See Nor. Pac. Ry. v.
Boyd, 228 U. 8. 482.

The facts are less complicated than the proceedings that

KANSAS CITY RY. vr. GUARDIAN TRUST Co. 173
240 U.S. Opinion of the Court.

have grown out of them. The Kansas City, Pittsburg and
Gulf Railroad extended from Kansas City to Port Arthur
on the Gulf of Mexico. It used terminals at Kansas City
belonging to the Belt Company above mentioned, and
companies in its control, and at Port Arthur belonging
to a Dock Company. All three were mortgaged and after
a default on the bonds of the Gulf Company in 1899 a
plan was made to bring the road and terminals into one
hand. The Gulf Company’s mortgage was to be fore-
closed and a new company formed which was to exchange
its own securities for the stock and bonds of the Gulf,
Dock and Belt Companies, making a new mortgage to
raise the necessary funds. The Gulf Company’s mortgage
was foreclosed, the appellant Company was formed, issued
its new securities, and in March and April, 1900, became
the owner of the Gulf road and of most of the stocks and
bonds of the old companies including the Belt Company.
In September, 1900, a suit was begun to foreclose the Belt
mortgage, and on December 31, 1901, it was sold for the
amount of its mortgage to the appellant. The Court of
Appeals thought it plain that the foreclosure was part of
the original plan; and as it also thought that the mortgaged
property was worth enough above the mortgage to pay the
unsecured creditors, it held that the stockholders when
receiving pay for their stock were receiving it in substance
as the proceeds of a transaction that removed all property
of the Belt Company from its unsecured creditors’ reach.
The appellant was the principal holder of the Belt Com-
pany stock, as well as the purchaser of its property with
notice of the outstanding debts, and therefore was de-
creed to pay the Trust Company’s claim.

The proceedings began with a creditors’ bill by the
Cambria Steel Company against the Belt Company and
the Guardian Trust Company to prevent the latter from
selling securities held by it for an alleged debt of the Belt
Company, the bill de ying the debt. The Court of

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174 OCTOBER TERM, 1915.
Opinion of the Court. 240 U.S.

Appeals thought that this suit was really a suit of the
appellant. The Cambria Steel Company has disappeared
and the proceedings have been carried on by the Belt
Company, the instrument of the appellant, and later by
the appellant, intervening in the suit, and all charging
that the Trust Company was indebted to the Belt. The
Trust Company, on the other hand, asserted its rights
and prayed judgment for its debt in its answer to the
Belt, although it failed to insert a similar prayer in its
answer to appellant. The ground of the appellant’s in-
tervention was that the Belt mortgage covered after-
acquired property, so that it was entitled to the securities
in the Trust Company’s hands unless the Trust Company
could make good its claim. On the other hand the decree
foreclosing the Belt mortgage expressly left open the right
of the Trust Company to contend that the appellant was
bound to pay the Belt Company’s unsecured debts.

The appellant attacks the conclusion of the Circuit
Court of Appeals upon several grounds. In the first place
it contends that the Trust Company is bound by the
plan because it was a party to it, exchanged its own Belt
Company stock in pursuance of it, was a depositary
under it and used all its influence to induce other stock-
holders and bondholders to come in. It asserts that the
plans contained an express covenant not to hold the new
company liable for the debts of the old one. It also asserts
that the property was not worth more than the mortgage.
We will consider these and some subordinate matters in turn.

The plan presented elaborate estimates of the funds
required. One item was “For present «tock [of the Kansas
City Suburban Belt Railroad Company] one-quarter of
a share of new preferred stock and three-quarters of a
share of new common stock of the company as reorganized
for each share of the present stock of those who may
deposit thereunder.” The Trust Company exchanged
its stock and it is said that by its retention of this benefit

KANSAS CITY RY, v. GUARDIAN TRUST CO. 175
240 U.S. Opinion of the Court.

it has precluded itself from claiming its debt. But the
plan also stated at the outset as one of the results to be
attained, “The payment of the floating debt and the
existing Car Trust obligations,” and at a later point it
allowed for payment of floating debts, $475,000, to come
from proceeds of the sale of first mortgage bonds and
preferred stock and payment of $10 per share by partici-
pating stockholders. It is true that the estimate turned
out to be much too small, but the plan did not on its face
give notice of an intent to prefer the Belt stockholders to
its creditors, and therefore the Trust ( sompany by assent-
ing to it and exchanging stock under it lost no rights.
What has happened is that, owing perhaps to unexpected
difficulties, the plan has not been earried out. The appel-
lant has no ground for complaining that the Trust Com-
pany has not tendered back its stock, which it took before
the foreclosure of the Belt Road was begun.

But it is said that the Trust Company covenanted not
to assert its claim because the agreement provided that
‘no right is conferred, nor any trust, liability or obligation
(except . . .) is created by this agreement or the
plan, or is assumed hereunder, or by or for any new com-
pany in favor of any bondholder or any other creditor
or any holder of any claims whatsoever against the said
companies, . . . with respect to any property ac-
quired by purchase at any foreclosure sale.’ It appears
to us that argument cannot make plainer the meaning
of these words. They exclude an obligation arising from
the instrument but neither purport to nor could exclude
rights of creditors founded on the facts to which we have
referred. Those rights were untouched and none the less
that this particular ereditor became a party to the agree-
ment because of its other interests that were concerned.
We may remark in this connection that we are equally
unable to find in the plan a contract in favor of the Trust
Company as an unsecured creditor. The plan sets out a

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176 OCTOBER TERM, 1915.

Opinion of the Court. 240 U.S.

general scheme that it was hoped would be worked out, but
its nature, the words quoted, and the authority given to
the committee for carrying out the plan to modify it and
to use their discretion all are inconsistent with the notion
of a promise that all unsecured debts should be paid.

As the claim of the Trust Company was put by the
Court of Appeals upon the equitable right of creditors
to be preferred to stockholders against the property of a
debtor corporation, it is essential to inquire whether the
appellant received any such property, that is whether it
got by the foreclosure more than enough to satisfy the
mortgage, which was a paramount lien. The Master
found, as he expressed it, in the absence of proof to the
contrary, that the amount for which the property was
sold, $1,000,000, the amount of the mortgage, was its
fair market value. Although the evidence was not re-
ported the Circuit Court of Appeals was of opinion that it
sufficiently appeared that there was a valuable equity.
The argument for the appellant assumes that the different
conclusion was reached while leaving the Master’s finding
to stand. But the decision rather lays that finding on
one side upon considerations that may be summed up in
a few words. The allowance made for the Belt Company’s
bonds shows that they were regarded as well secured.
The stockholders of the Gulf Company in their exchange
paid ten dollars a share for stock of the appellant received
by them. Therefore it must be assumed that the stock
of the appellant was worth at least that amount. There-
fore the $4,750,000 of that stock given for the Belt Com-
pany’s stock was worth at least $475,000, and probably
more. But the value of this stock depended on the value
of the Belt Company’s property above the mortgage.
It appears to us that while perhaps not justifying definite
figures, the reasoning warrants the belief that there was
an equity for which the appellant must account.

The appellant urges that the foreclosure sale is to be

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KANSAS CITY RY. v. GUARDIAN TRUST CO. 177
240 U.S. Opinion of the Court.

treated as a distinct transaction—that after it had become
the owner of the greater part of the bonds and stock of
the Belt Company it was free to do as it pleased. If it
had simply kept the stock it would have incurred no
liability to creditors of the Belt Company and an inde-
pendent foreclosure would put it in no worse place. But
the ownership of the Belt Road by the new company
was contemplated from the first and although no fraud
on creditors was suggested or intended in the plan, still
the Court of Appeals was justified in regarding the whole
proceeding as one from the start to the close and in throw-
ing on the appellant the responsibility of so carrying it
out as to avoid inequitable results.

It is said that the Trust Company is barred by laches:
that the appellant took possession on January 1, 1902,
and that the Trust Company did not assert. its claim
until 1905 in this cause; that it knew and was intimately
connected with every step of the reorganization and was
silent at a time when its conduct would influence others,
as the successful assertion of its claim would have de-
pressed the market value of the appellant’s stock and
bonds. But the Trust Company set up its claim in this
suit in answer to the Cambria bill on November 5, 1900.
The very ground of the bill was to prevent the Trust
Company from selling securities to satisfy the claim as
it had given notice that it intended to. The company
tried to become a party to the Belt foreclosure and did
succeed in saving its rights from prejudice. When later
the Belt Company and the appellants came into this suit it
set up its claim again. Without going into further detail
we are of opinion that the Trust Company is not barred.

Some technical objections may be left pretty much
upon the decision below. 210 Fed. Rep. 699. It is ob-
jected that the liability of the appellant is not open be-
cause the exception to the Master’s conclusion against
it was put upon other grounds than the merits, but we

178 OCTOBER TERM, 1915.
Opinion of the Court. 240 U.S.

see no reason to doubt that the Court of Appeals was right
in thinking that justice would be done by adopting the
course that it did. So it is said that the appellant was
induced by the form of the exceptions to forego reopening
the Master’s finding that the Belt Company was indebted
to the Trust Company. But it is not to be believed that
the appellant has given up anything that it thought
worth insisting upon. 210 Fed. Rep. 700. So as to the
absence of a specific prayer for relief in the Trust Com-
pany’s answer to the appellant’s intervention in its own
name. In short while it is true that reorganization plans
often would fail if the old stockholders could not be in-
duced to come in and to contribute some fresh money,
and that the necessity of such arrangements should lead
Courts to avoid artificial scruples, still we are not pre-
pared to say that the Court of Appeals was wrong in find-
ing that there had been a transgression of the well settled
rule of equity in this case, or that it went further than to
see that substantial justice should be done.

There is a motion to dismiss upon which in view of our
decision the defendant in error would not desire to insist,
and on the other side a petition for certiorari in case its
appeal should be dismissed. In the circumstances the
distinctions become of little importance. But the Cambria
bill asserted a lien under the judgment of a Federal court
and the petition of the appellant asserted title under a
decree of a Federal court, so that the decree may be af-
firmed upon the appeal. Cooke v. Avery, 147 U.S. 375.
Commercial Publishing Co. v. Beckwith, 188 U. S. 567,
569. The case has been so fully discussed below that we
think it unnecessary to go into further detail.

Decree affirmed.

Tue Cnier Justice and Mr. Justice VAN DEVANTER
are of opinion that upon the findings of the Master the
decree should be reversed, and therefore dissent.

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