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Opinion of the Court.

lature of Nebraska, expressly authorizing in any written instrument for the payment of money a stipulation for not exceeding ten per cent as an attorney's fee in case of suit. Neb. Gen. Stats. 98. This act was repealed in 1879. Laws of Neb. 1879, p. 78. In the cases cited, the Supreme Court of the State held that by the repeal of the statute the contract right to recover attorney's fees was taken away. So, as this court follows the decisions of the highest court of the State in such matters, (Bendey v. Townsend, 109 U. S. 665,) the provision in the trust deed for the payment of $1000 as attorney's fees cannot be regarded as of binding force. But while contract rights are settled by the law of the State, that law does not determine the procedure of courts of the United States sitting as courts of equity, or the costs which are taxable there, or control the discretion exercised in matters of allowances. Those courts acquire their jurisdiction and powers from another source than the State. There is no statute of Nebraska in respect to the matter. Even if there were one expressly prohibiting courts of equity from making allowances to trustees or their counsel, such prohibition would not control the proceedings in Federal equity courts. They proceed according to the general rules of equity, except so far as such rules are changed by the legislation of Congress, and while they may enforce special equitable rights of parties given by state statutes, (IIolland v. Challen, 110 U. S. 15,) yet their general powers as courts of equity are not determined and cannot be cut off by any state legislation. It is the general rule of equity, that a trustee called upon to discharge any duties in the administering of his trust is entitled to compensation therefor, and included therein is a reasonable allowance for counsel fees. This is constantly enforced in the Federal courts in the various railroad foreclosures that have been and are proceeding therein ; and this, irrespective of any state legislation. The subject was exhaustively considered by Mr. Justice Bradley, in the case of Trustees v. Greenough, 105 U. S. 527. The English and American authorities were fully reviewed, and the power and duty of the court to make reasonable allowances (including counsel fees) to trustees or others acting in that capacity

Statement of the Case.

was affirmed. See, also, Central Railroad v. Pettus, 113 U. S. 116. It is unnecessary to more than refer to these decisions.

In the case before us, a trustee comes into a court of equity and asks its aid in enabling him to discharge the duties of his trust; and, according to the settled law of this court, he is entitled to an allowance for reasonable counsel fees. But we think $1000 is too much. Indeed, in the bill of complainant, the trustee alleges that $500 is a reasonable attorney's fee for the foreclosure of the trust deed ; and we think that under the circumstances no more should be allowed.

The decree will, therefore, be modified by reducing the amount found due Burnham, Tulleys & Company to $1094.16, and the attorney's fee from $1000 to $500. In other respects the decree will be affirmed. The appellants will recover their costs in this court.

Affirmed as modified.




No. 1495. Submitted March 28, 1892. – Decided April 11, 1892.

A decision by the highest court of a State that a former judgment of the

same court in the same case, between the same parties, upon a demurrer, was res judicata in that action as to the rights of the parties, presents no Federal question for the consideration of this court, and is broad enough to maintain the judgment; and this court is therefore without jurisdiction.

The court stated the case as follows:

Ellis brought his action in the Circuit Court for Douglas County, Wisconsin, against the Northern Pacific Railroad Company, E. L. Johnson, W. H. Sage and Henry W. Bradford, July 1, 1889, to quiet title to seven lots in the city of Superior, deraigned through one Roberts, to whom the county

Statement of the Case.

of Douglas, which held under certain tax deeds, had conveyed, and then averred that the Northern Pacific Railroad Company asserted title to the lots under a certain deed, a copy of which was given. This deed recited that by resolution of the county board of supervisors, passed on the 7th day of September, 1880, and duly entered in their record of proceedings, the county of Douglas offered and agreed to transfer, by good and sufficient deed or deeds, to the Northern Pacific Railroad Company, all the alienable lots or lands belonging to the said county of Douglas, which had been acquired by deed, and to which said county had held undisputed title during two years then last past, upon condition that the said Northern Pacific Railroad Company should, within the year 1881, construct, complete and equip a railroad from the Northern Pacific junction, entering the State of Wisconsin, and running therein between the St. Louis and the Nemadji Rivers to the Bay of Superior, at or near the mouth of the Nemadji River, and thence to Connor's Point, along or near the westerly side of said bay, with a depot, and convenient connections with docks or piers; that the railroad company by resolution of its board of directors duly accepted the offer and terms of the agreement, and constructed, completed and equipped a railroad as required; and, therefore, the county “hereby quit claims to the Northern Pacific Railroad, grantee, in consideration of the premises, and for the sum of one dollar in hand paid by said grantee, etc., the lots in question and others, the deed being duly executed by the county clerk and sealed with the county seal, with proper witnesses and acknowledgment.

It was further alleged that prior to the issuing of the deed the county board of Douglas County, on or about the 16th day of December, 1880, entered into a contract with the railroad company, substantially as appeared by the recitals in the deed, with the exception of an extension of time for one year in which to complete the road; that the contract was without authority upon the part of the county, and its acts were ultra vires and void ; that the railroad company neither paid to the county or for its use, nor contracted to pay, any valuable consideration, nor to issue, nor did it issue, any stock in the com

Statement of the Case.

pany to the county, or for its use, nor did the county ever subscribe for or agree to take any stock in the company; and that the only consideration for the conveyance was the bonus or inducement to the company to locate its road in Superior.

That the defendants Sage, Johnson and Bradford, respectively, claimed, as owners of the original title, some interest in some of these lots; and abstracts, showing the chain of title, were affixed as exhibits.

That the value of all the lots was $1400; and that by reason of the premises the plaintiff was embarrassed and injured in his title, etc.

The prayer was for a decree that the plaintiff be adjudged the owner of the lots in fee simple, free from any lien, claim, title or right made or exercised or attempted to be made or exercised by the defendants, or any of them, by virtue of their several claims of ownership; and that the deed from the county of Douglas to the railroad company be adjudged illegal, null and void, and the plaintiff quieted in his title and possession, etc.

The railroad company filed its demurrer to the complaint on July 23, 1889, assigning as grounds multifariousness and insufficiency of facts stated to constitute a cause of action.

August 22, 1889, the Douglas County Circuit Court entered an order overruling the demurrer, from which order the railroad company prosecuted an appeal to the Supreme Court of Wisconsin.

The Supreme Court held that “a conveyance of its lands by a county as a donation to a railroad company is void; and the legislature, having no power to authorize such donation in the first instance, cannot by a subsequent statute validate the conveyance;" and that the deed in question was, therefore, void; and it gave judgment May 20, 1890, affirming the order of the court below, and remanding the cause for further proceedings. Ellis v. Northern Pacific Railroad, 77 Wisconsin, 114.

The opinion and order were filed in the Douglas County Circuit Court July 23, 1890, and on August 15, 1890, the company filed its answer reasserting, among other things, its claim under the deed of the county.

Statement of the Case.

March 11, 1891, the company applied for leave to file a supplemental answer, which was denied, and on March 30 the court made its findings upon which judgment was rendered April 13, 1891, establishing the title of the plaintiff, and adjudging the invalidity of the railroad company's claim.

A bill of exceptions was duly signed, and contained the supplemental answer, which the railroad company had asked leave to file, and the motion for such leave and the order thereon denying it. This supplemental answer averred that on December 13, 1889, the railroad company filed its bill of complaint in the Circuit Court of the United States for the Western District of Wisconsin against Roberts, Johnson and Ellis, (the plaintiff in this case,) setting forth the passage of resolutions by the board of supervisors of Douglas County, the acceptance by the company of the proposition therein made, and its compliance therewith by the construction of the line of railroad required to be built, and the conveyance to the company in accordance with another resolution of the board, whereby, it was alleged, the company became owner in fee simple of the real estate mentioned therein, of which all but the seven lots embraced in this action was claimed in the complaint; that the identical question involved in this suit was involved in the case in the Circuit Court of the United States, which was heard, upon bill and answer, November 18, 1890, and taken under advisement, and on February 11, 1891, that court directed a decree in favor of the company and against the defendants, which decree was afterwards, on March 7, 1891, duly entered, it being thereby ordered, adjudged and decreed that the company was the full, legal and beneficial owner of all the lands described in the bill of complaint in said cause, and that the deeds of conveyance by the county to Roberts and by Roberts to Ellis were and are invalid and of no force and effect as against the complainant; and the railroad company insisted upon this decree as an absolute bar to the relief prayed in this action.

The bill of exceptions also showed the evidence offered on the trial in the state court, including the resolutions of the supervisors of Douglas County and of the railroad company,

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