that I cannot reconcile same, and therefore accept the values of improvements claimed as that originally given, viz. the aggregate claimed as made after road passed into defendant's hands, as being $3,720.14. If this $4,134 was added, the aggregate would be $7,854.32, and I fail to find anywhere in the evidence that which substantiates such an aggregate.

Upon April 10, 1896, the defendant J. C. Hubinger, by deed with full warranty covenant, conveyed this plant, in its thus improved condition, to J. C. Hubinger Company, at an expressed consideration of $100,000. While it might be unjust to defendant to hold this expressed consideration as the actual market value which the defendant then placed on this plant at the date of his said conveyance, yet it is not unjust to him to hold that this conveyance abundantly proves that, at its date, he regarded the plant as of large value. To hold otherwise would, in effect, be to declare that defendant intended such expressed consideration to be a deceptive or fraudulent consideration. He had expended for such plant as follows:

And, in his said conveyance, defendant conveys, with full warranty of title, this very plant for the expressed consideration of $100,000. This conveyance, it may be noted, was so executed by him after the supreme court of the state had reversed the order of confirmation of sale of the plant to him. And no facts appear in the evidence which would justify the court in finding that outside or surrounding circumstances had given to this plant such greatly increased value. Indeed, the evidence introduced would compel the contrary finding.

We may note, also, that the supreme court of Iowa (65 N. W. 982) had the question of value of this plant under consideration on the appeal herein before spoken of. That court was determining whether the confirmation of the sale, by the commissioner of said superior court, of this railway plant, to defendant, Hubinger, for $10,000, should be sustained. While the opinion of the court does not expressly determine that such purchase price was so grossly inadequate as to shock the conscience, yet the court had under special consideration, upon evidence formally presented by either side, the value of the plant, and the opinion states:

"This property cost some $60,000 or upward, and the showing preponderates that it is now of three times the value of the present bid, or more."

On this appellate hearing, the present defendant was the appellee, and opposed to him were "the plaintiff [plaintiff in the present action], the defendant street-car company, all of the bondholders, and some others, including interveners." It may therefore be safely assumed that the question of value of plant, at date same was turned over to defendant Hubinger, was fully presented, since the

decision of that question was to control the supreme court in affirming or reversing the confirmation of the sale to defendant Hubinger.

Under the evidence submitted, I find as follows:

Findings of Fact.

(1) Plaintiff, the Central Trust Company of New York, now is, and at the commencement of this action was, a corporation organized under the laws of the state of New York, and a citizen of said state; and defendant John C. Hubinger then was, and now is, a citizen of the state of Iowa.

(2) The Gate City Electric Street-Railway Company, which was a corporation organized under the laws of the state of Iowa, had, prior to the foreclosure suit hereinafter mentioned, duly executed, in favor of plaintiff herein, as trustee, its certain trust deed, upon the plant and property situated in the city of Keokuk, Iowa, of said Street-Railway Company, to secure the payment of the bonds and coupons executed by said Street-Railway Company, and in said trust deed described.

(3) On the 2d day of January, 1894, plaintiff instituted in the superior court of the city of Keokuk, Iowa (which was a court of record and of full jurisdiction therefor), a suit to foreclose said trust deed, and to obtain, by the sale of said Railway Company property, the payment of the amount due and unpaid on said bonds. and coupons. To said suit said Street-Railway Company was made Different lienholders were made parties to said suit, either as defendants or as interveners on their own petitions.

defendant.

(4) During said foreclosure proceedings, a receiver of the said property of said Street-Railway Company was by said superior court appointed, who took possession of said property.

(5) Such proceedings in said foreclosure suit were duly had as that upon March 21, 1894, decree was by said superior court entered therein, finding then due and unpaid on said outstanding bonds the sum of $85,000; that the lien of said trust deed was a first lien upon all the property in said trust deed described, to wit, all the property, buildings, electric light plant, steam plant, machinery, engines, boilers, dynamos, electrical machinery, electrical lamps, and other electrical appurtenances, poles, wires, lines, together with all and singular the privileges, appurtenances, and franchises thereto belonging, and all personal property, of whatever kind and description, and wherever situated, and all the rights, privileges, and franchises, of the said Street-Railway Company, the description of said property embracing and intending to embrace therein, and subject to the lien of said trust deed, all the estate, property, and franchises that were owned by said Street-Railway Company at the date of said trust deed, and all such as was thereafter acquired by said Street-Railway Company, and also lot 10 in block 200 in said city of Keokuk, being occupied by said Street-Railway Company for its power house. The said description in said decree included all the rights, privileges, franchises, and property, of whatsoever description and wheresoever situated, which, at the date when said decree was entered, was owned by said Gate City Elec

tric Street-Railway Company. Said first lien of said trust deed, as by said decree established, was, however, by said decree, made subject to the lien in said decree declared for the claims of certain of said parties to said suit, and the taxable and fixed costs in said suit, which costs and claims, as in said decree so established, amounted in the aggregate to about $10,840.

(6) Said decree appointed a commissioner to make sale thereunder, and report such sale to the said superior court for its consideration. Said sale was ordered, to be made of said property as an entirety, and without redemption, statutory or otherwise.

(7) Upon April 28, 1894, said commissioner duly exposed said plant and property to sale, pursuant to the terms of said decree. At such sale, John C. Hubinger, defendant herein, bid for said property the sum of $10,000, and the same was struck off to said defendant for the amount of his said bid.

(8) Said sale to said defendant was thereupon by said commissioner duly reported to said superior court; whereupon objections to the approval thereof were filed by the plaintiff herein, as said trustee, by the American Loan & Trust Company, as holder of certain of said bonds, and by others. But, after due hearing, said sale was by said superior court confirmed, and said commissioner directed to execute deed for said property to said Hubinger upon the payment by him of said $10,000, which amount was so paid, and deed so executed, on May 10, 1894, and said deed approved by said superior court, and said receiver was ordered to turn over said plant and property to said Hubinger, which was accordingly done; and upon said May 10, 1894, said Hubinger took possession of said plant and property thereunder, and said receiver was by said superior court discharged.

(9) Said approval of said sale was duly excepted to by the said parties so filing objections, and thereafter notices of appeal to the supreme court of Iowa from order confirming sale were served on said Hubinger, viz. by W. J. Roberts, on June 27, 1894, and by plaintiff herein and said American Loan & Trust Company on August 25, 1894. Upon January 23, 1896, said supreme court (the opinion relating thereto being reported in 65 N. W. 982) reversed the action of said superior court in confirming the sale of said property to said Hubinger. Said Hubinger, within the period prescribed therefor by the rules of said supreme court, filed in said court his petition for a rehearing in said case, which petition was, to wit, about June, 1896, by said supreme court, denied; and thereafter, to wit, on the 9th day of June, 1896, writ of procedendo from said supreme court, in the matter of said appeal, was forwarded to said superior court, with directions to said superior court for "further proceedings to be had in said court not inconsistent" with the opinion of said supreme court.

(10) The $10,000 paid into said superior court on confirmation of said sale to said Hubinger was applied to payment of the liens which by decree, as aforesaid, were, with the costs of said suit, established as superior to the lien of said trust deed, and such liens were paid and wholly discharged thereby, save a lien due to the

Illinois Steel & Rail Company, on which last-named lien was paid $401.69. The remaining (unpaid) portion of said lien, to wit, about $828.50, was purchased, and is now held by said Hubinger. Save

as affected by said balance of said claim of said Steel & Rail Company, the said trust-deed lien held by plaintiffs thereby became and is the first and prior lien as determined and established by said decree.

(11) Shortly after said plant and property was by said receiver turned over to said Hubinger, as hereinafter found, said Hubinger turned the same over to J. C. Hubinger Company, which was a corporation organized under the laws of the state of Iowa, and engaged in the operation of an electric light plant in said city of Keokuk, and of brickworks in or near said city. Said J. C. Hubinger Company was controlled by said J. C. Hubinger. The entire business of said corporation, and what was to be done by said corporation, was determined by defendant J. C. Hubinger, who was the active and absolute manager thereof. No conveyance or other transfer in writing of said property was executed by said J. C. Hubinger for nearly two years, and not until after the supreme court of Iowa had reversed the order of said superior court which confirmed said sale to defendant Hubinger, to wit, not until April 10, 1896, at which date said J. C. Hubinger formally executed conveyance of said property, with full warranty covenant, to J. C. Hubinger Company, for the consideration therein expressed of $100,000.

(12) When said suit for foreclosure was instituted, as above stated, and for some months prior thereto, and at the time when said property was so turned over to said Hubinger upon said confirmation of said sale, the street-railway line of the said Gate City Electric Street-Railway Company was not in operation. For a distance of some blocks, the rails were out of place, the same having been taken up by the city authorities in the progress of paving of the streets. And said railway system could not then be operated successfully except with the relaying of said blocks and the making of extensive repairs to different parts of its system.

(13) About May, 1892, by an ordinance known as "Special Ordinance No. 60," there was granted by the city council of the city of Keokuk, to the said Gate City Electric Street-Railway Company, the exclusive franchise or right and privilege to construct and operate an electric street railway in the streets of said city for the period of 30 years from said date. This franchise or right to construct and operate was included as a part of the property described in said trust deed, and, on sale under said decree of foreclosure, passed to the purchaser thereat, the same being a part of the property by said decree ordered to be sold as an entirety. At the time of the said attempted sale of said property by said commissioner, said franchise, right, and privilege, to wit, the ordinance granting same, remained unrepealed, and same was turned over to said J. C. Hubinger by said receiver, with the other property then so turned over, to wit, May 10, 1894. At the date of the passage of said Special Ordinance No. 60 there was in force, and has continuously since

said date remained in force, section 335 of the Revised Ordinances of said city of Keokuk (Roberts' Revision of 1887), as follows:

“Sec. 335. All ordinances, resolutions or other acts of the city council of Keokuk hereafter to be passed, adopted or done, whereby special privileges or immunities shall be granted to or conferred upon any person or persons, or contracts made with them, shall, unless the contrary be expressed on the face thereof, be subject to amendment or repeal at all times; and all such grants. unless the contrary be expressed, shall be taken to be made and accepted with reference to these provisions, and all rights which it declares and reserves to the city."

(14) After said plant and property had been turned over to defendant Hubinger, said Hubinger applied to said city of Keokuk for a franchise or right and privilege to operate an electric street railway on the streets of said city; and on June 4, 1894, said city, by ordinance known as "Special Ordinance No. 73," granted to said J. C. Hubinger Company, for a period of 25 years from said date, "the exclusive right to lay down, construct, and operate a street railway on all the streets of the city of Keokuk, with single or double track standard railway tracks," "with electric or other practicable motor power other than animal or steam power." Said ordinance contains, as a part of section 9 thereof, the following:

"This ordinance shall not interfere with any vested rights or privileges heretofore granted by the city of Keokuk to any person or corporation."

Section 18 of said ordinance provided that such ordinance should not take effect until accepted and agreed to by J. C. Hubinger Company in writing, filed with the city clerk. Such written accept

ance was executed by J. C. Hubinger Company, and filed with the said clerk, within the time provided in said ordinance. Said section 18 also provided as follows:

"All ordinances or franchises given to street railway companies in the city of Keokuk, that conflict with this franchise are hereby repealed: provided, that none of the rights of the city of Keokuk under special Ordinance No. 60, under any other ordinance or agreement or under the laws of the state of Iowa, or any right existing prior to the passage hereof to make the cost of any paving heretofore ordered a lien or charge on or against the property formerly held by the Gate City Electric Street-Railway Company are in any way waived or forfeited by granting of this franchise or the passing of this ordinance or by any of the terms hereof."

(15) At the time said property was by said receiver turned over to said J. C. Hubinger, the system of tracks of said street railway had four terminal points. After said Special Ordinance No. 73 had been accepted by said J. C. Hubinger Company, and had taken effect, and before the supreme court of Iowa had reversed the order of the superior court which confirmed the sale to J. C. Hubinger important changes were made in said system of tracks. "Plat A," which is filed herewith, as a part hereof, correctly shows, by red lines thereon, the line of tracks of said street railway as the same existed when this property was by said receiver turned over to said Hubinger. This plat includes the (about five) blocks on whose streets the rails had been taken up in the progress of paving the streets by the city, as stated in paragraph 12 of these findings, and track had been made inoperative for street cars. "Plat B," filed herewith, and as a part hereof, correctly shows the line of tracks