AD'AMS 11. KEHLOR MILLING CO.
281
WHEELER, J'. The defendant leased water front to a grantor of the orators fora wharf, reservinp; the right to terminate the lease and take the wharf at its value. The lease run to the lessee, without naming heirs, assigns, or representatives. A person proposing to purchase the whole interest of the orators and defendant was informed by the officers of the defendant that they claimed that the whole would belong to the defendant upon the death of the original lessee. He informed the orators of this claim, and abandoned the negotiations because of it. They brought this bill to have the lease reformed, if by its terms as drawn it would terminate by the death of the lessee. The answer asserts the claim, and that the lease as drawn expressed the true meaning of the contract. The testimony shows that a continuing lease, terminable only by an election to take the wharf at its' value, was intended. The defendant at the hearing admits that such is the efff!ct of the lease as drawn, and submits to a decree establishing that construction; but denies that the orators are entitled to costs. The bill does not allege anything more than that the officers of the defendant claimed that effect from the lease, as a matter of opinion, upon the legal construction oithe lease, without any practical effect upon any rights of the orators. A demurrer to it would have probably made an amendment necessary. The answer made the taking of testimony prudent, and a decree proper. The Orators would, on demurrer to the bill sustained, have been liahle to pay costs, as well as to lose their own to that time, by rule 35. The ·defendant did not demur,nor become in any manner entitled to costs. Costs in equity cases are always someWhat controllable by discretion. In this case the orators appear' to be justly entitled to the costs of taking their testimony and of the decree, and not to the costs of the bill. Let the decree entered be without costs as to bill, and with costs subsequent to the bill.
ADAMS
et al· .".
KEHLOR
Co. et ale
(Oircuit (Jourt, E. D. Missouri, E. D. April 12, 1889.)
1.
ATTORNEY Al'D CLIENT-COMPENSATION
OUT OF FUND. In a suit to set aside a fraudulent conveyance, in which other creditors intervene and secure benefits from the litigation. the court, having the fund in its control for distribution, will award a sum therefrom in payment of com· plainants' solicitors.
SAME-COSTS TAXED AGAINST DEFENDANT.
No fee can be taxed against defendants in such case, except the fee of $20 allowed by Rev. St. U. S. § 824.
SAME.
Compensation for services of the solicitors in obtaining the judgment in the state court on which the suit to cancel the fraudulent conveyance is founded, cannot be allowed in the latter suit. .
In Equity.
282
'
,FED]l:RAL REl'9BTER,
vol. 38.
Bill by Henry Adams andothel's against the KehIor Milling anllothers, to set aside a .fraudulent· assignment. Decree for complainant, and for other credit9l'S, who. intervened, See 35 Fed. Rep. 433. The complainants' solicitors moved for. an allowance for their services, to be taxed as costs in the .case. , Mills &- Fli:tcrajt, for complainants. G. M. Stewart, for defendants. ,:' THAYER, J,. In accordance with the decree heretofore entered, (35 Fed. Rep. 433,) the master has filed his report. An application is now made by .complainants' :solicitors for an allowance of attorneys' fees, to be taxed:.ll.I:i costs against the defendants. The claim, as made, appears to, be It claim for compensation for services rendered as solicitors for complainants in this case, and also for services rendered to complainants in the state court" in obtaining a judgment against the Kehlor Milling Company, on. which thep.l'Oceeding in the federal court was based. It is clear that this court bas n(;) lI.uthori:tyto tax against the defendants any fees due from the complainants to their solicitors for services rendered in the suit in the state cQurt"although the judgment obtainedein that suit forms the basis pf the, proceeding in the federaL court. It is equally clear that the. costs as between solicitor and client in the suit pending in this court cannot be taxed against. the defendants for a greater sum than the statute allows. It is well,settled that when, under a bill filed by one beneficibehalfiof himselCand all other beneficiaries, a fund is ary in a trust, recovered and brOUght into court for distribution, the court may tax a reasonable solicitQr's fee as :costs, i'llld order it to be paid outofthe fUnd So, recovered. ,Tru8tees,v... Gre(fftO'V,gh, 105U. S. v.PetWs, ll3U. 8.11.6, 5 StJp.Ct. Rep. ,387 ;; Thisrulerests upon the ground that where one litigant has borne the burden and expense of a Jitigation that has inured to the benefit of others as well as himself, those who have shared in the benefits should contribute to the expense. In that class of cases it is customary to tax against the fund realized a fee in favor of complainant's solicitor, before any distribution is ordered. But even this rule would not authorize1lhe court to tax the costs 'as between solicitor and client against the defendants. Defendants are liable for a fee of $20. taxed tirldel: section 824, Rev. St U. S. Hany further fee is taxed, it must be taxed against a fund actually or constructively in the cU8t9dy qf the court fOt the purpose of The has reported ;$at heretofore made the amount due to the complainants from the defendants is $1,281.94. He also reports that J. M. Whitcomb, Jack & Co., and Henderson, Freen & Co., who, as unsecured Milliu.g Comp/1-ny,haye intervened in the cause since the decree was rendered, are entitled to further amounts aggregating ,$2,617.15, The parties who have intervefled have unquestionably Jl#gatlc)l) complainants in, hehalf of all unsecured creditors. and, undenithe rule announced in the case of Trustees v. Greenough, supra, they should contribute ratably to the payment of a reasonable fee to complainants'solicitors. A final o,rder
in
