poration of its duties to the public. Whether or not the parties in this case were in that position, it is not necessary to say; but the pith of the contract in question is to that effect, and as though it had reconciled and compromised many of the questions argued before me, in a way which, in my judgment, does not affect the publie necessities, and does not prevent the railway corporation from performing its duties to the public. I see no difficulty whatever, therefore, in carrying out the contract substantially as the parties to it have agreed.

The question next arises, to what does the contract appertain? The court finds here two propositions of importance. The first is whether the exception of the buildings needed for railroad uses, is limited to those that are or were within the original location, and the other is based upon the claim of the respondents that the corporation is to determine what buildings are thus required. In the latter connection the respondents say that whether or not the buildings were required for railroad purposes, was to be determined according to the condition of things at the termination of the lease. I agree to this; and I also hold that whether or not an excepted building is within or without the limits referred to in the contract, relates to the same period of time. As all buildings which, in my judgment, are needed for railroad uses are within the limits of the location as it now exists, I do not consider that the railway corporation is required to turn over to the complainants, or that the complainants are required to receive, any of the buildings intended for strictly railroad uses, whether within or without the original right of way. I refer here to the phraseology, "excepting such parts of said buildings and improvements within said limits, as may be required by said second party for the proper and convenient use of its road, and for its engines, cars, and repair shops." Even if this clause is restricted to the time when the lease was made, so that the "limits" are those of the original location or right of way, yet, taken in connection with what follows in the lease,-that the buildings and improvements to be taken by the complainant shall be used for hotel purposes, it is very clear, reading the whole contract together, that it was not the intention that the complainants should take, or that the respondent railway corporation should deliver, any building intended strictly for railroad purposes, wherever situate. The respondents say that the word "required" is equivalent to the word "demanded" or "desired," and that the railway corporation is the ultimate judge of what buildings were to be reserved for railroad uses. Taking the whole contract together, my view of it is that, whatever particular word or particular expression may be found in it, it appears plainly that the complainants were to have the hotel, and that, whatever else was to be retained by the railway corporation, this certainly was not. But I do not rest the case there. I will follow to some extent further the view taken by the respondents and the interpretation put by them on the word "required." According to well-settled principles of construction, the word, whatever its meaning, is to be limited by the word "fairly," -"fairly required." And the fact that, since this controversy arose,

the respondents have leased the hotel property to be run substantially as the complainants must run it, if they take it, shows conclusively it was not thus "fairly required." So far as the record shows, it can be and will be used in the future for hotel purposes, railroad purposes, and other purposes, by the complainants, precisely as it has been used in the past under the arrangements which the respondents themselves have made; and the carrying out of the contract will not alter its status with reference to railroad uses and public necessities and convenience. In this position I am especially strengthened by the fact that, on the construction I put on the new location, the hotel buildings are not taken by it, and have been allowed to continue the property of private individuals (respondents in this case). I therefore see no difficulty whatever, arising either from the changed condition of affairs through the new location or from any present public necessity, which stands in the way of the carrying out of this contract according to its spirit and its letter, and I shall order a decree to that effect. I shall, however, provide in the decree that the railway corporation shall be allowed such uses of the platform, and of any portions of the general public rooms of the hotel, for the sale of tickets, or as a resort for its employes and passengers, as has been customary in the past, and in that way follow both the spirit of the contract and its letter, as it provides that the railway corporation shall retain such buildings or "parts" of buildings as are required, and so on. There will be no difficulty in framing a decree upon this point, having full regard, as it must have, to what has been the custom in the past.

I shall decree that the complainants have the use of both locations for the purposes which the contract describes, for five years from November 1, 1889, which I understand to be practically the termination of the old lease. It expired in 1887, but was con tinued by verbal arrangement and sufferance until 1889; and everything will run from that date.

I can conceive of no way in which equity can be done between these parties, without acceding to the prayer for an accounting; and I shall decree that the respondents account for the profits on the lease from November 1, 1889, to the time when the master makes up his report, and that the complainants be charged with interest from November 1, 1889, on the amount of the value of the hotel, fixtures, and furniture. The equities, as between the several respondents, touching the items of profit on the lease and interest, will be reserved for consideration after the coming in of the master's report; but that the master will ascertain and report in relation thereto such facts as any of the respondents request. I cannot direct the respondents to set aside any land to which the hotel may be moved; but I shall direct the master, in making his appraisal, to take into account the changed condition on the summit of the mountain, and if he finds that, on account of the new location, it will be impossible for the complainants to move this hotel upon any practical lot on the summit, he must take that into consideration in determining the value at which the complainants shall take the property. I shall also direct him to inquire whether the com

plainants, before the new location was made, had practically a monopoly of the summit of the mountain for hotel purposes, except this precise location where the hotel now is, and are now deprived of that monopoly, and to give the facts found in reference thereto such weight as they should have in determining the value of this hotel, fixtures, and furniture. I am somewhat embarrassed as to the parties who should account; but, on the whole, I am of the opinion that, inasmuch as all the respondents entered into the last lease to Mr. Barron, and have thus all co-operated in denying possession to complainants, they are all liable for whatever profits the master may report.

I am somewhat embarrassed by the relations between the railway corporation and the owners of the hotel. The interest of the latter may be diminished in value by the fact that the former has made this additional location. For the purpose of carrying out that part of the contract, which provides that the railway corporation account to the owners of the hotel for their fair interests under an appraisal, I shall direct the master to find what amount shall be allowed by the former to the latter by reason of depreciation, if any, in valuing the hotel, fixtures, and furniture, on account of there being no convenient lot to which it can be removed, if such be found to be the fact. I do not mean to say that there is no convenient lot to which to move the hotel. I have no opinion about it. I shall simply direct the master to ascertain whether such is the fact, and, if such is the fact, to find as already stated. I shall direct the master to permit the respondents to file with him an offer of release of any portion of this location they deem proper to release, to which the hotel may be removed, and to accompany the same with the release duly executed; and thereupon to give the owners of the hotel property the benefit of the increased value, if any, which would come to it by reason thereof. I shall direct the master to permit the respondent railway corporation to make the new location certain as to the point of beginning and otherwise, and to prove that they have executed and filed proper papers therefor; and, in default thereof, that the master sill assume, for the purposes of this case, that it commences at the bolt midway of the stage office. In any event, I shall direct him to assume, for the purposes of this case, that the new location is valid. I shall direct that no final decree be entered in the case until the court is fully advised, and counsel have been heard, touching the injunction granted by Judge Allen in the state court. I will be prepared to consider any further provisions to go into the decree, which may be suggested by counsel on either side, which will tend to work out the equities of this case. It is, perhaps, impossible for me to foresee all the equities which may be disposed of by the master, and I therefore reserve the right to add such further orders as it may appear ought justly to be inserted. The decree for accounting should go against the Concord & Montreal Railroad Company, the Mt. Washington Railway Company, and Walter Aiken, but not against the Boston, Concord & Montreal Railroad Company. The complainants may file a draft decree based on these

notes, on or before rule day in October, and the respondents may file corrections thereof on or before rule day in November. For the present, the court will enter the following order:

Decree for

specific performance and master, according to notes on file. Draft decree to be filed by complainants on or before October rules. Corrections to be filed by respondents on or before November rules.

ORMAN v. ENGLISH & SCOTTISH MERCANTILE INVESTMENT TRUST,

Limited.

(Circuit Court of Appeals, Fifth Circuit. April 10, 1894.)

No. 209.

FRAUDULENT CONVEYANCES-RESERVATION TO GRANTOR.

A corporation conveyed to trustees all its property and assets, its business, and the benefit of all contracts, to secure its debentures; but the deed further provided that the conveyance was to be "by way of floating security, only, and not to prevent the sale or other dealing by the company, in the course of its business, of or with any part of its property, until the trustee shall enter," etc. Held, that the conveyance was void as to existing creditors.

Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Alabama.

This was a bill filed by the English & Scottish Mercantile Investment Trust, Limited, against William A. Orman, for an injunction and other relief. A temporary injunction was granted, and defendant appeals.

The original bill in this cause was filed to assert and establish the priority of the rights of the appellee, the English & Scottish Mercantile Investment Trust, Limited, over those claimed and sought to be enforced by the appellant, William A. Orman. The state of affairs out of which the conflict of claims between those parties arises is stated in the bill to be that on or about the 22d day of December, 1890, the North Alabama Development Company, Limited, an English corporation newly organized for the purpose of acquiring and developing, by mines, manufactories, railroads, boat lines, and other enterprises, certain properties in this country, determined to raise and borrow, for the purpose of carrying out such undertaking, a sum of money amounting to about $625,000, and, to accomplish this, issued its debentures, 1,243 in number, for £100 each,-equivalent to about $500 in money of the United States,-which debentures were made, by their terms, a lien and charge upon all its property, then owned or afterwards to be acquired, and conveyed such property to the appellee (the complainant in the bill), as trustee for the benefit of the holders of said debentures. This conveyance is the deed of trust of December 22, 1890, by which the maker of the debentures set forth the execution of said debentures, their terms, and the considerations upon which they were issued, and declared the lien created by them to be further assured by such instrument. This deed of trust, which has never been recorded, contained a covenant for the execution and delivery of all such conveyances, by way of further assurance, as might be necessary for a compliance with the laws of the state in which the property might be situated, to give notice of the rights and interests of such debenture holders; and in conformity to this covenant the North Alabama Development Company, Limited, executed and delivered to appellee, as trustee for said debenture holders, a second deed of trust, dated March 5, 1892, which was recorded in Franklin county, Ala., on April 11, 1892. On the 28th day of November, 1891, William A. Orman, the appellant in this case, on a debt accruing June 18, 1890, sued out an attachment from the circuit court of Franklin county, Ala., against the North Alabama Development Com

pany, Limited, which was levied on the property of said company by the sheriff of said county. This cause was removed to the circuit court of the United States, where, on the 30th day of October, 1892, a judgment was rendered in favor of said Orman. 53 Fed. 469. After an affirmance of said judgment by this court on appeal (5 C. C. A. 22, 55 Fed. 18), it was attempted to sell the property levied on under execution, and the original bill in this cause was filed to restrain such sale, and to have the superior right of the complainant therein enforced. The bill alleges that Orman had actual notice of the complainant's rights, and also of the facts above recited, and shows that by the threatened sale by the United States marshal, under Orman's judgment and execution, the property of the North Alabama Development Company, Limited, subject to complainant's deed of trust, constituting one complete plant for the carrying out of the undertaking for which the money was raised by the debentures, and consisting of lands, and a large quantity of machinery, implements, and fixtures, suitable for, and connected with, an ironore mining plant, would be scattered and injured, the plant, in its entirety, impaired and dismembered by the removal or destruction of any portion of it, which would work irreparable injury to its rights under the deeds of trust, and that it would be compelled, in the discharge of its trust duties, to bring and maintain, if it regained possession of said property, numerous suits at law, with the risk of loss or injury to portions of it, and prayed an injunction to prevent the threatened wrongs and injuries, and the recognition and enforcement of its priority and superiority of right under said deeds of trust. temporary injunction was granted on this bill, which, on motion of Orman, was dissolved. In his answer to the bill, Orman insists that by the levy of the attachment in his suit at law against the North Alabama Development Company, Limited, prior to the recording of any deed of trust from that company to the complainant in Franklin county, Ala., which would create constructive notice to him, and without any actual notice to him, which he denies having received before the issue and levy of his attachment at law, he acquired, by force of section 2957 of the Code of Alabama (1886), a specific lien on all the property of said company so levied upon, and that this lien of such levy is superior to that of appellee under its deeds of trust. After the dissolution of the first injunction, and on the 14th day of October, 1893, the appellee (complainant below) moved the court for leave to file an amended and supplemental bill of complaint setting forth additional facts touching the rights of appellee, and the debenture holders for whom it is trustee, and affecting the actual notice to Orman of their interests. No answer was filed by Orman to this supplemental bill, and the motion and prayer for injunction were resisted by him on the grounds following, to wit: "(1) Because there is no equity in the complainants' original or amended and supplemental bills of complaint. (2) The complainants, according to the averments of said bills, have a full, plain, and adequate and complete remedy at law. (3) The instrument, a copy of which is made Exhibit

A

A to said bills, and which, by the averments of said bills, is made the basis of the relief asked and the right claimed by complainants, is fraudulent, null, and void, upon its face, as against the claim and attachment of defendant, Orman. (4) Because defendant, Orman, by his attachment proceedings and the judgment therein, acquired a lien upon the property so attached, superior to any claim or lien of complainant thereon, as shown by said bills. (5) The sworn answer of defendant, Orman, hereto attached, to the averments of said bills, is a full and complete replication and denial of all the material averments of fact upon which the right to relief by said injunction is asked. Hence, said injunction should not be granted." On the consideration, supported by the sworn statements of the original and supplemental bill, the judge of the circuit court, on the 11th day of November, 1893, granted leave to file the bill, and a temporary injunction, staying the sale of the property until the further order of the court. From that order the present appeal is prosecuted, under section 7 of the judiciary act of 1891.

Milton Humes and W. I. Bullock, for appellant.

Thomas Roulhac, for appellee.

Before PARDEE and MCCORMICK, Circuit Judges.