# Union Trust Company of New York v. Souther

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United States Supreme Court
107 U.S. 591
Union Trust Company of New York v. Souther
Appeal from the Circuit Court of the United Court for the Southern District of Illinois
This appeal was taken because of a difference of opinion between the circuit judge and the district judge, holding the circuit court, as to a matter decided, and the facts on which the questions certified depend may be stated as follows:
On the seventh of October, 1871, the Cairo & St. Louis Railroad Company mortgaged its property, franchises, tolls, incomes, and profits to the Union Trust Company of New York, to secure an issue of bonds amounting in the aggregate to $2,500,000. Default was made in the payment of interest falling due October 1, 1873, and semi-annually thereafter. On the sixth of December, 1877, the trust company filed its bill in the circuit court of the United States for the southern district of Illinois to foreclose the mortgage. In the bill it is, among other things, averred that the company is insolvent; 'that many and large claims exist against said railroad company of the character known as floating debt; and that unless a receiver is appointed * * * great, irreparable damage to said bondholders will ensue, and the property will be liable to be greatly depreciated, and to be involved in useless litigation; and your orator and its bondholders will lose the benefit thereof as a security for the payment of said bonds.' Upon this allegation it was prayed that the 'court will appoint a receiver according to the course and practice of this court, with the usual powers of receivers in like cases.'
As soon as the bill was filed a receiver was appointed, and in making the appointment the court, of its own motion, entered the following order: 'And said receiver, after paying the expenses of operating, maintaining, and repairing said railroad and property, and after making such other payments herein authorized as are or may be necessary for the conduct of such receivership, shall pay and discharge all amounts due and owing by said railroad company for labor, or supplies, that may have accrued in the operation and maintenance of such railroad property within six months immediately preceding the rendition of this decree.'
In 1876 the railroad company paid $3,000 to the beneficiaries under the mortgage on account of their expenses, to a much larger amount, in keeping an agency in the United States, and in connection with the forbearance which they had given the company in respect to overdue interest. Previous to the appointment of the receiver none of the current income of the company, except this single amount, had been paid to the bondholders.
When the order in respect to debts for labor and supplies was entered, the court instituted no special inquiries in respect to the use which had been made of the income prior to that time.
The receiver thus appointed took possession of the property and operated the road until the end of the year 1881, and after a sale had been perfected under a decree of foreclosure. During the receivership the net earnings of the road, after paying all operating expenses, exceeded $200,000. The whole amount was, however, under the orders of the court, with the consent of the trust company, from time to time, expended 'in purchasing additional grounds, rolling-stock, etc., and in making permanent repairs and improvements upon said railroad property, instead of discharging therewith the claims of [against] the railroad company for labor, materials, and supplies' during the six months immediately preceding the appointment of the receiver, and when the property was finally sold over $65,000 of these debts remained unpaid. Among them was one to E. E. Souther & Brother amounting to $532.14 for supplies. On the ninth of May, 1878, after the receiver got into possession of the road, Souther & Brother filed in the suit for foreclosure an intervening petition praying for the allowance of their claim and its payment. On the sixteenth of May the claim was allowed and the receiver directed to pay it out of the net earnings, 'and before any improvements or ameliorations are made upon the property in his hands as receiver.' On the fifth of June both the trust company and receiver filed motions to set aside this order. These motions remaining undisposed of, the road was sold under a decree of foreclosure in 1881, and brought only $4,000,000, when the amount due under the mortgage was $4,300,000 and some more. After the report of the sale was made, and a deficiency appeared, the court, on the eighth of September, 1882, set aside the order for the payment of the debt to the intervenors and allowed the trust company to answer. An answer was filed and proof taken which disclosed the foregoing facts. Upon the facts so established one of the questions which arose was whether, under the circumstances, the court had the right to make an order directing the payment of the claim. The circuit judge was of the opinion that it had, and a decree was entered accordingly. From that decree this appeal was taken.
S.C.orning Judd and W. F. Whitehouse, for appellant.
T. C. Mather, for appellee.
Mr. Chief Justice Waite, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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