Atlantic Trust Co. v. ChapmanAtlantic Trust Co. v. Chapman
delivered the opinion of the court.
The principal question in this case—now before.us upon writ of certiorari' for the review of a final order of the Circuit Court of Appeals for the Ninth Circuit-—is. stated by counsel-to be this: Is a complainant, who has in good faith prosecuted a suit Upon a good cause of action, and upon whose application. the court has- properly appointed a receiver, and -who obtains. a decree fully establishing his rights, nevertheless personally responsible for a-deficiency caused by the failure óf the property which is thé subject of the shit to bring enough to cover the allowances made by the court to the receiver and his counsel, and the . expenses which the' receiver, without Special request of" the complainant in any instance, had incurred?
. The "Wdodbridge Canal and- Irrigation Company, a corporation of .California, executed July 17, 1891,. a mortgage conveying all its property and franchises to the Atlantic Trust Company; a New York corporation, in trust to secure'certain bonds, with interest coupons attached, issued by the mortgagor company for the purpose of raising money to fully complete and equip its canal and headworks, and of. paying its indebtedness then existing or- to be subsequently incurred. The bonds were made payable with interest semi-annually at the office of. the Trust Company-in the city of New York.
' In the event of default in the ■ payment of semi-annual interest :on the bonds for six months, or of any tax or assessment for the same period, the trustee and its successors were authorized, on the written request of the' majority' of the holders of the. outstanding bonds, or, if the principal of the bonds- shall be. due, upon the request • of the holders of outstanding bonds, to take actual .possession of the mortgaged property, and by themselves 'or agents hold, use and enjoy
The mortgage made provision as to the disposal.of moneys received from tolls, income,, profits, etc., and provided that, “nothing herein shall be construed as limiting the right of the trustee to apply to any competent court for a decree of foreclosure and sale under this indenture, or for the usual relief in such proceedings, and the said trustee, or its successor, may, in its discretion, so proceed.”
The Oanal and Irrigation Company, having made default in the payment of the principal and interest due on its bonds, its board, of directors, by formal action, recognized their, inability ■ to meet’ its obligations, and requested the trustee to bring the present suit for the foreclosure of the mortgage, and enforce the payment of -the principal and interest of-the bonds. The bringing of the suit was also'' in conformity with the written request of the owners and holders .of fifty-five of the outstanding bonds, who. expressed-their election , and option that the principal of the 'bonds should forthwith become due and payable.-
-The bill-filed by the Trust Company prayed: 1. That a receiver be appointed to take charge of the .mortgaged property and to maintain and operate the canals pending the suit and until sale under a judgment of foreclosure. 2. That the court ascertain the number and amount. of, outstanding bonds, fix
The court, on motion of the Trust Company, the' Canal and Irrigation Company appearing and consenting thereunto, appointed E. C. Chapman receiver of the mortgaged property* with authority, to take possession of it. The receiver was empowered by the order of court to continue the operation of the main' and branch canals of the mortgagor company in the usual and ordinary way as the same were then operated, discharging, so far as practicable, contracts for water supplies entered into by the company, collecting rents, tolls, and moneys payable under water contracts, keeping the property in good condition and repair, employing needful agents and servants at such compensation as he deemed reasonable, paying 'for needful labor, supplies and materials as might seem,to him to be necessary and proper in the exercise of a sound discretion, “with leave to apply to the court, from time to time as he may be advised for'instructions in the premises.” “He shall,” the order proceeded, “do whatever may be needful to preserve and maintain the corporate franchises of said defendant corporation and its rights to the use of the water and all its property, until final judgment in this action, and to- defray the. necessary and proper expenses incident thereto.” The above order was made. October 3, 1894. .
. In .the progress of the cause the receiver, upon his own motion and not, so far as, the record shows, by direction of the plaintiff, applied to the court and obtained its áuthority to .borrow money and issue certificates, which were, used by Mm in the operatión of the property, paying debts, etc.
The order confirming the sale directed the clerk of the court ■to report the balance remaining unpaid on account of the fees of officers- or appointees of. the court, or of advances made by them, and on account of receiver’s certificates, time checks or other éxpenses of the receiver’s administration. The order also directed the receiver to render an account of his receipts, disbursements and expenses in the management and care of the property between the date of the .decree of foreclosure and the date of the sale and transfer of possession.
The clerk made the required report, from which it appeared that the proceeds pf sale, -$21,000, were absorbed by these claims: Compensation of receiver, $9,000; receiver’s attorneys, $9,000, and fees of commissioner, master, advertising, etc., $3,000. He further reported that of the amounts found due by the decree of foreclosure of September 18, 1897, there remained unpaid, on the following accounts, these sums: Receiver’s certificates, $12,292.47; receiver, for advance made by ‘him, care and management'of property, $3,105.72; time checks issued by receiver, $5,728.89; work done for receiver, $2,269.85; expenses of operating canal system, $5,728.54; other sums, $13,723.49'; total, $42,848.96.
On the third .of August, 1899, nearly five years after the appointment of the receiver, he filed his final report and peti
The petition alleged that the Canal and Irrigation Company-was insolvent and unable to respond to any judgment for deficiency that had been or might be entered in the cause. Upon this report and petition being filed the Circuit Court ordered , the Trust Company to show cause why the amount due the receiver and his employés should not be settled and allowed, and why judgment for such deficiency should not, when as.certained, be entered against that company and it be required to pay the same into court.
The Trust Company appeared and demurred to the receiver’s report and motion for judgment against it. The Circuit Court, after hearing, sustained the demurrer and discharged the rule to-show. cause. Upon appeal to the Circuit Court of Appeals the order of the Circuit Court was reversed, the former court being of opinion that the Trust Company was liable tó a personal judgment for the alleged deficiency. Chapman v. Atlantic Trust Co., 119 Fed. Rep. 257.
The grounds upon which .the Circuit Court and the Circuit Court of Appeals, respectively, proceeded appear in the margin. 1
We are of opinion that the Court of Appeals erred in holding that the Trust Company was liable for the deficiency found to exist. No such liability could arise from the simple fact that it was on plaintiff’s motion that a receiver was appointed to take charge of the property pending the litigation. The motion for a receiver was to the end that the property might be cared for and preserved for all who had or might have an interest in the proceeds of its‘sale. The circumstances seemed to have justified the motion, but whether a receiver should have been appointed or not was in the sound discretion of the court. Immediately upon such appointment and after the qualification of the receiver, the property passed into the custody of the law, and thenceforward its administration was wholly under the control of the court by. its officer or creature, the receiver. In
Booth
v.
Clark,
"It is-true that cases are cited in which the party bringing a suit, in which a receiver is appointed, has been held liable for-expenses incurred by the receiver in excess of the proceeds arising from the sale o.f the property. Hut in most, if not in all, of those cases the circumstances were peculiar- and were such as" to make it right and equitable, in the opinion of the court, that that should be done. As, for instance, in
Ephraim
v.
Pacific Bank,
129 California, 589, 592, in which arose a question as to the party to whom a receiver should look for reimbursement or payment of his expenses, the court recognized the fact that the general rule that the compensation of a receiver was a charge upon, the fund in his hands did not apply without qualification to every case, and said: "If he [the receiver] has taken property into his custody under an irregular, unauthorized appointment, he must look for his compensation to the parties at whose instance he was appointed, and the sáme rule applies if the property of which' he takes possession is determined to belong to persons who are not parties to the action, and is taken from his, possession by paramount authority. As to such property his appointment as receiver was
The above cases relied upon in the Circuit Court of Appeals—
When neither the order appointing a receiver nor the order authorizing him to borrow money añd issue certificates was conditioned upon the plaintiff (in a suit for foreclosure and sale)' being liable for the expenses of the receivership, and when no special circumstances appear which, upon equitable prim^; ciples, would authorize the court to fix liability upon the plain
The considerations which; in our judgment, should" control in cases like this are well stated by the,Supreme Court of Oregon in the above case of
Farmers’ Loan Co.
v.
Oregon Pacific R. R. Co.,
31 Oregon, 237. That, it is true, was the case of a " railroad receivership, but what is said is equally applicable to other gwasi-public corporations having public duties to perform, as in the case of water and irrigation companies. The particular ■question in that case was whether the plaintiff in a suit brought to foreclose a railroad mortgage could be held liable for the wages of employés of the receiver, who had no funds with _whieh to pay them, having exhausted his power to float receiver’s certificates. After observing’ that the plaintiff, at whose instance a receiver is appointed thereby consents to the absolute control and management, of the mortgaged property by the court and its agents and to the priority of claims for the expenses incurred in its operation and management, and after declaring that it was not perceived upon what ground it could be claimed that, because the expenses of the receivership .were allowed without any fault of his' to exceed the value of the mortgaged property, thus entirely destroying his security, he must, in addition to the loss of his debt, be compelled to make-good the deficit, unless the order of appointment was made upon that condition, the court in’that case proceeded to say (p. 247): that the plaintiff “ has no control over the acts of the receiver, and if, without his consent, he is to be held responsible therefor, he is hablé to absolute bankruptcy and ruin.-' Such a
Without further elaboration, or further citation of authorities, we adjudge that the final orders of the Circuit Court and of the Circuit Court of Appeals, whereby the Trust Company •was held liable to make good the deficiency found to exist in the funds required for the expenses of the receivership, were erroneous. Those orders must be set aside, and the petition of the receiver,, so far as it seeks to impose such liability on the plaintiff, must be dismissed. To that end the decree is reversed and the cause remanded for such proceedings as will be consistent with this- opinion and be in conformity with law.
Reversed.
Notes
Circuit Court-—Judge Morrow: “I am of the opinion that provisions should have been made when this suit was commenced, of at the time when the Receiver- was appointed, for the payment of or security for the amount of his expenses, and for the redemption of whatever certificates might be
Circuit Court of Appeals—Judge Ross, 119 Fed. Rep. 268: “Those who render services in and about the receivership are-justly entitled to be paid the fair value of such services, and when the issuance of'receiver’s certificates becomes necessary for the proper preservation of the property, and, such certificates are authorized by the court to be issued by the Receiver for money to be used for such purposes, those who buy the obligations are entitled to have them paid. How? In cases like the present, out of the property or its proceeds, certainly. No one, we apprehend, will question that. But the property having been sold for but a trifle more than the amount theretofore allowed the Receiver and his attorney for their services jn and ahout the receivership; and they credited, with su'ch allowance on their bid, who is to suffer? The complainant, at whose- instance the Receiver was appointed; or those who, relying upon his acts, based upon the authority and sanction of the court, invested their money and rendered their services in and about the operation and preservation of the property? It is not difficult to determine on which side of this question are the equities. With due deference we are unable to see any force in the suggestion of the Supreme Court of Oregon in the case cited.that, as the complainant in such a suit has no control over the Receiver, if he be held liable for the expenses of the receivership, in the event-the property prove insufficient to pay them, he may be bankrupted. At the same time it is conceded by that learned court that where it appears probable that the property will prove insufficient, the court may require, as a condition to the appointment of a receiver, a guaranty of the payment of the expenses of such officer, and a/like guaranty subsequently, on pain of the discharge of the Receiver, when it becomes evident that the property will prove insufficient to pay the expenses. The theory of this manifestly is, that in these two instances the complainant can inform himself of the probable outcome of the property, and if he be not willing to give the guaranty he will not secure the appointment of a Receiver in the one instance, or his continuance in office in the other. But why should he not be required to inform himself, also,'when no such condition is imposed by the court? Precisely the same opportunity on complainant’s part, and .precisely the same duty to inform himself in that respect, exists in the absence of the requirement of the guaranty mentioned. The complainant, whose lien upon the property it is sought to-foreclose, in the nature of things, must and should be held to have much better information regarding the value