its decision, reversing the action of said superior court in confirming said sale. Said Hubinger having filed a petition for rehearing, action was not had by said supreme court thereon, until in the June following, when petition for rehearing was overruled, and writ of procedendo issued from said supreme court, and was filed in said Superior court on June 10, 1896. Pending action on said petition for rehearing, said J. C. Hubinger, on April 10, 1896, conveyed with full covenants of warranty, to said J. C. Hubinger Company, the plant and property which had been conveyed to him by the commissioner's deed. After said filing in said superior court of said procedendo, said Trust Company tendered to said John C. Hubinger the amount by him paid on his said purchase, to wit, $10,000, and demanded restoration of the plant and property turned over to him by said receiver, under his said purchase as above stated. Said Hubinger failing and refusing to so restore same, the Trust Company began this action, viz. on September 14, 1896. James C. Davis and W. J. Roberts, for plaintiff. WOOLSON, District Judge (after stating the facts). This is an action in personam. The petition does not in any wise seek to interfere with the status of the plant and property conveyed to defendant Hubinger, by the deed executed in his favor by the commissioner of the superior court. The petition recognizes and asserts that after the plant and property of the Street-Railway Company had been turned over to said Hubinger, upon confirmation of sale to him, and before procedendo issued on the judgment of reversal in the supreme court of Iowa, said Hubinger had so dealt with said plant and property, so changed its situation and condition and its legal title, in short had so destroyed the plant and property as to its entirety, as that plaintiff was thereafter powerless to expose same again to sale on any execution that might be issued under and in accordance with the decree of the superior court as entered in the foreclosure suit. The Trust Company therefore ask herein, against said Hubinger, judgment for the value of the plant and property so turned over to him, less the $10,000 by him paid into the superior court, and which was to be applied in discharge of liens, etc., which had been established as having priority to the lien of the trust deed of said Trust Company. The pressure of imperative official duties will not permit any extended attempt to present the grounds and arguments on which the decision herein is based. Counsel have presented this case orally and by briefs, with the care and completeness which its importance justly demands. I have given much time to the consideration of the views thus presented, and to an examination of the cases cited as controlling authorities or precedents. Counsel, in behalf of each party, have furnished me with lengthy findings of fact, which I am requested to find. So far as I have deemed them sustained by the evidence and in any wise proper to be stated as such, I have given findings on the points requested, perhaps with a fullness of detailed statement not altogether necessary, and of doubtful propriety to be contained in such fact findings. It has, however, seemed due to counsel and clients that, so far as I could, I should embody in such findings the facts as, in my judgment, the evidence has proven them on each of the points requested. Counsel on either side may regard their requests for findings as refused. The discussion of the legal propositions presented by counsel deserve more than passing notice. Except for the imperative demands which other duties press upon me, I should have given the reasons impelling me to the conclusions reached on each of the important legal propositions presented. The comparative novelty, as well as the importance, of some of the questions presented for determination, and the ability and force with which counsel have presented them, would abundantly justify a somewhat extended consideration. I deeply regret that I may not attempt this. But I recognize, as urged by counsel on submission of the case, that the situation of the parties with regard to the property involved will not permit delay in decision, except as delay becomes unavoidable. I therefore present the findings and conclusions as briefly as I am able. I delay, however, to quote a sentence from brief of counsel for defendant, which presents on one point the position of defendant. On page 31 of defendant's brief it is said: "Defendant concedes there was, in fact, no sale of the property, and that his possession of the property was under the superior court, and that he holds what he bought subject to the order of the court, to be delivered upon payment to him of the amount he paid and the improvements he put in the property, which were necessary to put it in shape to earn something." But defendant, at the commencement of this action, held none of the plant and property which had been turned over to him by the receiver, upon confirmation by the superior court of the sale to him. In the April following the adverse decision of the supreme court (which decision was reached in January, 1896), the defendant aliened the entire plant and property. He holds the legal title to none of it. The municipal franchise which he bought at the sale under the foreclosure decree he surrendered as part consideration for the franchise granted, at his request, to J. C. Hubinger Company. Many blocks of road which he received he has removed, -destroyed as a part of the railway. If otherwise practicable, a resale of the car and track property described in the decree, and which was turned over to him by the receiver, must be on a mere junk basis, because the franchise to operate the same on the streets of the city has been repealed at his instance. Unless bought by the holder of the franchise, granted at his instance to J. C. Hubinger Company, that property could not be operated as a street railway. Giving to this franchise repeal full force, it results that whoever except, alone, the holder of the J. C. Hubinger Company franchise-bought the tracks must remove them from the streets. The tracks would have no status there as such, and might not be operated, with the J. C. Hubinger Company exclusive franchise outstanding. With the evidence so conclusively showing his inability to restore, defendant may not with success present a statement of his willingness. Among other points forcibly urged on behalf of defendant Hubinger are included references to certain statutes of Iowa, which perhaps should be noticed. At some length, counsel for defendant have presented their view of the statutes of Iowa relating to allowances to good-faith occupying claimants for improvements and betterments of property purchased at judicial sale. In my judgment, these statutes have no application to the present action. If this action proceeded against the property described in the decree, and attempt was made to take possession thereof, there would be great force in the position of counsel. But see this action is purely personal, seeks only a money judgment, and does not attempt to disturb either title to or possession of the property, these occupying claimant statutes have no application to the present action. It is urged that section 3199 of the Code of 1873 of Iowa, in force at date when decree in foreclosure suit was entered, and continuously since, is a protection to defendant herein. The section provides: "Sec. 3199. Property acquired by a purchaser in good faith under a judgment subsequently reversed shall not be affected by such reversal." The argument proceeds on the theory that defendant Hubinger was a purchaser in good faith at the commissioner's sale, and that the reversal by the supreme court of the confirmation of such sale may not, under the provisions of the section quoted, affect such property in his hands. It may not be disputed that in one respect plaintiff Trust Company assumed the risks as to condition of property, pending appeal. Had it promptly filed a supersedeas, we may assume that there would have been no sale under the foreclosure decree, and the property would not have been turned over to defendant. But a supersedeas was not made, by statute, a prerequisite to a valid appeal. Now, since such bond was not essential to an appeal, plaintiff might elect to give or to decline to give it. Had the supersedeas been given (I assume for the argument that the order of confirmation of sale was properly subject to supersedeas on appeal), the property, then idle, would have remained in the receiver's hands, and probably without being put into operation, and would have been subject largely to rapid deterioration. Therefore, when decision was had on the appeal, the property would probably have been of much less value than at the time of the sale to which the appeal related. If, however, the property passed into the hands of the purchaser, the probabilities were that it would be preserved, and substantial value remain until decision on the appeal was obtained. Besides, the road, in active operation, would have preserved or added a value to its franchise not obtainable had the road remained idle. Thus, it may be concluded that the situation, at time of appeal, was not such as to make, under then existing circumstances, the failure to file a supersedeas count heavily against the Trust Company on its appeal from the order confirming said sale. But the judgment under which the property in question was sold was not reversed. It stands to-day as valid as on the day it was rendered. Not a word or syllable of its contents has been changed by the decision of the supreme court had on the appeal against defendant Hubinger. Indeed, Hubinger was not and is not a party to the action in which said judgment was rendered. Had he so desired, he could not have appealed from such judgment, nor could he properly have been a party to an appeal therefrom. So that, since he was appellee in the hearing in the supreme court, Here de the appeal could not have been from the judgment under which the property was sold. What, then, was the nature of the appeal? Upon such appeal there were ranged on one side the plaintiff Trust Company, the mortgagor Street Railway Company, the holders of the bonds, and some of the parties in whose favor the judgment had decreed liens as precedent to that of the trust deed. In the foreclosure suit these parties had held relations antagonistic to each other. On this appeal their interests lay together. Upon the opposite side of the appeal was defendant Hubinger. The opinion filed by the supreme court in rendering decision of reversal shows that no portion or provision of the judgment and decree, rendered in the foreclosure suit, was attacked in the appeal. The entire subject of the appeal related to the order which confirmed the commissioner's sale to defendant Hubinger. The appeal was not, therefore, from a "judgment subsequently reversed." Nor was nor is the property which was turned over to defendant Hubinger, under said order of confirmation of sale, "property acquired by a purchaser in good faith under a judgment subsequently reversed." Defendant Hubinger was not a stranger to said appeal. The "purchaser in good faith" generally occupies such position. fendant Hubinger was the active resistant-the only person resisting-on said appeal. He alone reaped advantage and benefit if the appellate court should affirm the order of confirmation and the sale remain undisturbed. This appeal related only to a portion of the doings of the commissioner appointed in the foreclosure decree, with reference to the enforcement of said decree. As to such doings and the order of court thereon, defendant Hubinger was not a purchaser in good faith, under said section 3199, as construed by the supreme court of Iowa. And whether the question be solved by holding that the section only applies to reversals of judgments which are the foundation or authority for the sales under which the property was acquired, or that such section only relates to purchasers in good faith, with reference to the matter appealed from, the same result must follow, the section does not apply to the situation as disclosed by the evidence in this action. Besides, as heretofore stated, this action is purely in personam. No attempt is herein made to affect the present condition, possession, or title of the property which the defendant acquired under the sale by the commissioner. Upon the question of the value of the property, I deem it proper to make a few suggestions. The evidence introduced touching the value of this street-railway plant in May, 1894, is exceedingly contradictory, but perhaps not greatly more contradictory than might be expected when we consider the differing standpoints from which the various witnesses arrive at its value, and also the peculiar condition at that date of this plant, as to its roadbed, overhead construction, motive power, and rolling stock. The months in which the railway had been without operation produced seeming depreciation greatly beyond that actually occurring. But the evidence plainly indicates that disuse produces a more rapid depreciation of value than operation, with the repairs ordinarily connected there with, would have produced. This street-railway plant is shown to have had a somewhat peculiar history. In 1891 and 1892 it was largely reconstructed, and then mortgaged. The bonds ($85,000) for which the present plaintiff is trustee were issued with reference to the value of the road as then estimated by parties having general familiarity with such values. The fact now plainly appears, however, that the road, considered without reference to the value of its municipal franchise, was then of an actual value, much less than the face of the bonds issued. After 1891, and up to 1894, the road experienced a varied existence, all of which tends to establish the fact just stated. In the introduction of evidence relating to value in May, 1894, the court permitted to both parties a wide range. The value of the plant in 1892 (at the time when plaintiff's trust deed was executed), the nature and value of the improvements thereafter placed on the plant up to the date of transfer to the defendant, and the improvements made thereto by defendant, were given upon both sides with fullness of detail, as also the elements which were claimed on either side as constituting deterioration in condition and depreciation in value. Any attempt at harmonizing this evidence, and giving the exact grounds on which I base the value at which I have arrived, will subserve no useful purpose, and other pressing duties forbid the attempt. The pleadings filed in said superior court upon August 12, 1896, and verified upon August 11, 1896, by the oath of defendant Hubinger, state that after the transfer, by the receiver, to said Hubinger, of this street-railway plant, there had been expended, for improvements and repairs in putting the plant in operative condition, the sum of $1,560, and said Hubinger, in such pleading, names that amount as the sum which he therein claims should be repaid on account of such improvements. In another pleading, filed August 12, 1896, in said superior court, on behalf of J. C. Hubinger Company, and verified August 11, 1896, by the oath of J. C. Hubinger, the value of the "betterments and improvements" made is stated at $4,138. This seeming inconsistency in these two verified statements is perhaps to be explained by the fact that, in the pleading last above described, the value of certain track appropriated is stated at $2,600. If this $2,600 is taken from the $4,138, there is left $1,538 as net value remaining of improvements so made, which brings the two pleadings in substantial accord as to value of improvements so made after the plant passed into the defendant's hands. By an amendment to the last-named pleading, verified by J. C. Hubinger on October 15, 1896, and filed on same date in said superior court, there are stated as made, "to the cars and electrical appliances, improvements and repairs not set out in original petition," which are given as of the value of $2,160.32. Thus far the said improvements would aggregate, on statement of defendant, to $3,720.32. Perhaps the additional statement should be made that in said amended pleading an interlineation follows the extract above given that "value of improvements and betterments to said 39 blocks so repaired was $106 per block, or $4,134 in all." But this is so inconsistent with the above-given statements, as contained in said original pleadings, |