t54   . mesa4L REPORTER. r
the former as a trustee, and at"`its election treat his purchaseas though
made in trust for its benefit. It could only avail itself of J ohnson’s
purchase by virtue of some agreement or fraudulent act on his part.
The plaintiff does not rely upon any agreement, and if the conduct of
Johnson was such as to entitle the plaintiff to avoid his purchase or
avail itself of his bid, it ought to have exercised the right within a `
reasonable period. It could not delay the assertion of this right to
enable it to decide, in the light of subsequent events, whether it would
or not be profited by its assertion.
In ·Twi-n-lick Oil C0. v. Marbury, supra, Mr. Justice MILLER says:
"No delay for the purpose of enabling the defrauded party to specu-
late upon the chances which the future may give him of deciding prof-
itably to himself whether he will abide by his bargain or rescind it,
is allowed it in a court of equity." . That is precisely what the plain-
tiff asks the court to permit it to do in this case. It declined to take
the property at the price bid by.J0hnson, because, as matters then
‘ appeared, that seemed to be all or more than the property was worth.
It was patent to all at the time of the sale that the alternative would
be presented to the purchaser of expending at once a large sum for
repairs and improvements on the road, or abandoning its use as a
railroad altogether. And after these expenditures had been made it
was exceedingly doubtful whether the earnings of the road would equal »
its running expenses. In view of these facts, and the further fact
that it was claimed then that the lien for the $1,350,000 state aid
bonds issued to the road was paramount to the lien of the mortgage
under which the road was sold, (which is still an open question so far
as relates to this road,) it is not surprising that it was difficult to iind
a bidder for the property at the minimum price fixed in the decree,
or that the plaintiff declined to take it at that price. Years after4
wards, and when the property had greatly increased in value from
causes not then foreseen, and from extensive repairs and improve·
ments put upon it, and after other interests had intervened, and the
plaintiff erroneously supposed the question of the lien for the amount
of the state aid bonds was out of the way, it files this bill,- and asks
that it be permitted to do now what it declined to do then, take the
property at J ohnsorfs bid, and that he be decreed to be a trustee and
. required toiaocount. t · ‘ ‘ 2 3
A more inequitable demand, considering the facts. of the- case, was
probably never addressed to a court of equity. .If it wassettled that
there was nolien on the road to secure the state aid bonds,the case
would not be any more favorable for theplaintiif. Having declined