Wilson v. Boyce.

provisions had been accepted by the company; and the act was accepted by the company prior to the time when it authorized the execution of the conveyance of its lands in trust to Moore, Wilson, and Waterman. Indeed, the conveyance to these trustees in terms refers to the act of 1853 and 1857, and recognizes the priority of the State to the extent provided for in these acts; but in reciting that upon which the lien of the state attached, the language of the act of 1855 is followed, and the word "property," used in the act of 1857, omitted, apparently ex industria.

It is unnecessary to consider whether the lien provided for in the act of 1853 upon "the road and every part and section thereof, and its appurtenances," extended to the lands which had been granted by Congress, because the State was equally entitled to the security provided for in the act of 1857, which was "a first lien or mortgage upon the road and property of the company." This legislation has been construed by the supreme court of Missouri (Whitehead v. Vineyard, 50 Mo. 30). In the case just cited that court decided that, by the act of 1857, the State's lien extended to "all the corporate property of the companies named in the act," to lands as well as to the road proper, and even to lands subsequently acquired by the companies, as well as to those owned by them when the act was passed. We do not stop to inquire whether the nature of the case is such (the State having been a party in interest) that the construction of the state legislation by the highest tribunal of the state should not conclude us; for it will be admitted that a different judgment is not to be here pronounced, resulting in disturbing or overturning titles held good in the state tribunals, unless the opinion of the state supreme court is clearly erroneous.

Upon the best consideration we have been able to give to the subject, we concur in the opinion that by the act of 1857, however it would have been under the act of 1855,

Wilson v. Boyce.

the lien of the state extended to the lands as well as to the road proper and its appurtenances.

We mention briefly the reasons that give support to this conclusion:

1. The anxiety of the State to have full security is manifest on the face of all the enactments relating to the subject, and hence the provision for a first lien or mortgage, which was not only to be upon the road, but upon the property of the company.

2. The terms "road and property" are general and comprehensive, and as the word "property was specially inserted in the latter enactment, it must be supposed, particularly in legislation of such great moment, that it was advisedly done either to close doubts, or to extend the lien to property which would not be embraced by the words "road and its appurtenances." The lien extends not only to the road, but in addition to the property of the company-to property which would not or might not be embraced by the language "road and appurtenances." What property was meant? What so likely as the lands of the struggling companies, which, without the aid of the State by bonds, were unable to go on with their enterprises, and what more appropriately than lands falls within the comprehensive term property?

3. If the lands of the company be excluded from the mortgage, it is difficult to give a construction to the act which will give any adequate or considerable significance to the word property.

The plaintiff's counsel argues that the act of 1857 "gave the State a mortgage upon nothing other than the road and property of the company held for the purpose of the road," and he adds: "The term property can be well satisfied without giving it the interpretation of including all the land granted the road, not for its purposes of a railroad corporation, but in aid of the construction of the road. The

In re Donaldson.

term property is evidently meant to include, and to include nothing more, than the road-bed, rails upon it, turn-outs, depots, erections, buildings, franchises, locomotives, passenger and freight cars, hand cars, tenders, tools, machinery, materials, etc. and all property as part and necessary part of the entire establishment, movable or immovable, essential to the production of tolls and revenue."

But would not all this, or substantially all this, unless it be the franchise of being a corporation, be covered by a mortgage upon the road of the company, or the road and its appurtenances?

Under this view the defendant's landlord has the title, and this makes it unnecessary to determine whether the plaintiff would also fail for the reason that the deed to Hamilton was never executed or delivered by the trustees so as to be operative as a conveyance of the lands described therein.

TREAT, J. concurs.

JUDGMENT FOR THE DEFENDANT.

NOTE. A special finding of facts was made, and the case taken to the supreme court.

Further, as to legislation of the state of Missouri in aid of railways, and the rights of the grantees of the state, see Murdock v. Woodson, ante.

In re DONALDSON.

Under section 29 of the bankrupt act, where there are no assets, the district court may grant an application by the bankrupt for a discharge, although not applied for within a year, where the delay is satisfactorily excused.

(Before DILLON, Circuit Judge.)

In re Donaldson.

Bankrupt Act.-Discharge of Bankrupt.- When to be Applied For.

PETITION for review, under section 2 of the bankrupt act, of an order of the district court refusing the bankrupt a discharge in a case where there were no assets.

Mason G. Smith, for the petitioner for review.

Daniel Dillon, opposed.

DILLON, Circuit Judge.—Petition for review, under section 2 of the bankrupt act, of an order of the district court refusing to grant the bankrupt a discharge because the application was not made within a year. I think the opinion of the district court, which accompanied the order under review, correctly construes section 29, as applied to all cases where some good reason is not shown why the application was not made within the year. The second petition by the bankrupt having been filed after the year, it ought to have stated the reasons for the delay, and these may be controverted. Where there has been no fraud on the part of the bankrupt, and his conduct is irreproachable, and no injury to creditors has resulted from the delay to make the application, it would be a hardship upon him to deny a discharge merely on the ground of a failure to ask for it within the year, or to apply rigorously an inflexible bar of one year to an application otherwise meritorious. Required in the exercise of supervisory jurisdiction to hear and determine the case "as a court of equity," I affirm the order under review; but on the payment of the costs by the bankrupt in connection with his application, the district court will give him leave, if he is so advised, to amend his petition for a discharge so as to present a case which, if equitable, will excuse the delay in not making the application within the year.

ORDERED ACCORDINGLY.

In re Picton.

In re O'FALLON.

(Before DILLON, Circuit Judge.)

Sale of Property by Assignee in Bankruptcy.-Approval by Court.

Per Curiam. WHERE a public sale of the real estate is made by the assignee in bankruptcy under the order of the bankruptcy court, and the property is struck off to the highest bidder, such sale is subject to the approval of the court, which has a discretion to refuse to confirm it for mere inadequacy of price. It is not necessary that there should be fraud or such gross inadequacy of price as to be evidence of fraud.

S. W. Dooley, for the purchaser.

S. S. Boyd, for the assignee.

In re PICTON.

1. The second section of the bankrupt act gives to the circuit court jurisdiction to review, upon a proper record, an order of the district court, upon a trial before it without a jury, adjudicating the petitioner a bankrupt.

2. Where all of the testimony in the district court on the trial of such an issue was reduced to writing, preserved by bill of exception, and certified to the circuit court, the latter court can review the correctness of the order of the district court adjudging the petitioner a bankrupt. 3. But in such a case the appellate court will not reverse on a question of fact unless the judgment below is, in its opinion, clearly erroneous. 4. Testimony considered to establish the fraudulent transfer of property charged as an act of bankruptcy.

(Before DILLON, Circuit Judge.)