221 F. 322 | 9th Cir. | 1915
(after stating the facts as above). [1] 1. The validity of the contract of January 12, 1897, between Baker, as receiver of the bank, and the state of Washington, for the purchase of the tide lands, is attacked bv the defendants on the ground that the contract was ultra vires; its execution being an exercise of power not conferred upon national banks, or receivers thereof, by the statutes of the United States. Section 5137 of the Revised Statutes of the United States (Comp. St. 1913, § 9674) provides as follows :
“A nal tonal banking association may purchase, hold, and convey real estate for the following purposes, and for no others:
“First. Such as shall be necessary for its immediate accommodation in the tra «suction of its business.
"Second. Such as shall be mortgaged to it in good faith by way of security for debts previously contracted.
“Third. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its dealings.
•‘Fourth. Such as it shall purchase at sales under judgments, decrees, or mortgages held by the association, or shall purchase to secure debts due to it.
“But no such association shall hold the possession of any real estate under mortgage, or the title and possession of any real estate purchased to secure any debts due to it, for a longer period than five years.”
Chapter 28 of the Act of March 29, 1886 (24 Stat. 8 [Comp. St. 1913, .§§ 9828-9830]), provides as follows:
“Whenever the receiver of any national bank duly appointed by the Comptroller of the Currency, and who shall have duly qualified and entered upon the discharge of his trust, shall find it in his opinion necessary, in order to fully protect and benefit his said trust, to the extent of any and all equities that such trust may have in any property, real or personal, by reason of any bond, mortgage, assignment, or other proper legal claim attaching thereto, and which said property is to be sold under any execution, decree of foreclosure or proper order of any court of jurisdiction, he may certify the facts in the case, together with his opinion as to the value of the property to be sold, and the value óf the equity Ms said trust may have in the same, to the Comptroller of the Currency, together with a request for the right and authority to use and employ so much of the money of said trust as may be necessary to purchase such property at such sale.”
It is obvious that the contract for the purchase of the tide lands could not have been executed under section 5137 of the Revised Statutes. It does not fall within any of the purposes enumerated in that section for which national banks may purchase, hold, and convey real estate. Nor can the provisions of the act of March 29, 1886, be
The contract for the purchase of the tide lands grew out of the preference right to purchase, under the laws of the state of Washington, which existed in favor of the bank by virtue of the fact that it was the owner of the upland bordering thereon. The record does not disclose the manner in which the bank became the owner of the upland. It must be assumed, however, that the acquisition of the upland by the bank was in all respects legal. In the light of the fact, well known in the field of commerce, that the value of property adjacent to harbor sites may be increased to a material extent by reason of a preference right to purchase tide lands adjacent thereto, we think that the contract between the bank and the state for the purchase of the tide lands might well be viewed as a part of the transaction by which the bank acquired the upland, and as much a part of the valuable assets of the bank as would have been the original- littoral or riparian right attached to the upland.
But, in the view which we take of this case, the question of the right of the receiver to. execute the contract on behalf of the bank for the purchase of the tide lands becomes immaterial. It may be conceded that the contract was ultra vires. But its invalidity by reason of the fact that it was ultra vires cannot be interposed by the defendants as a 'defense to a suit of this character. In the case of National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188, it appeared that Matthews and another person had given their joint note to a mercantile company for $15,000, secured by a deed of trust on certain real property in Missouri, executed by Matthews alone. Soon after-wards the company assigned the note and deed of trust to the Union National Bank of St. Eouis, to secure a loan made to it at the time. The loan was not paid at maturity, and the bank directed the trustee to sell the premises'. Matthews thereupon filed a bill to enjoin the sale, upon the ground that the loan was made upon real security in violation of section 5136 of the Revised Statutes restricting loans by national banks to personal security. Mr. Justice Swayne, delivering the opinion of the Supreme Court of the United States, said:
“The object of the restrictions was obviously threefold. It was to keep the capital of the banks flowing in the daily channels of commerce’; to deter them from embarking in hazardous real estate speculations; and to prevent the accumulation of large masses of such property in their hands, to be held, as it were, in mortmain. The intent, not the letter, of the statute constitutes the law. A court of equity is always reluctant in the last degree to make a decree which will effect a forfeiture. The bank parted with its money in good faith. Its garments are unspotted. Under these circumstances, the defense of ultra vires, if it can be made, does not address itself favorably to the mind of the chancellor. We find nothing in the record touching the deed of trust which, in our judgment, brings it within the letter or the meaning of the prohibitions relied upon by the counsel for the defendant in error. * * * Sedgwick (Stat. and Const. Constr. 73) says: ‘Where it is a simple question of author■ity to contract, arising either on a question of regularity of organization or of power conferred by the charter, a party who has had the benefit of the*327 agreement, cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains.’ * * * We cannot believe it was meant that stockholders, and perhaps depositors and other creditors, should bo punished, and the borrower rewarded, by giving success to this defense whenever the offensive fact shall occur. The impending danger of a judgment of ouster and dissolution was, we think, the check, aud none other, contemplated by Congress. That has always been the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot, directly or indirectly, usurp this function of the government.”
In National Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443, the facts were as follows: Whitney had executed a mortgage upon certain premises to the National Bank of Genesee, N. Y., providing in terms for the payment of $5,000 one year from its date, with interest, hut declaring that it was made as collateral security for the payment of all notes which tlie hank held at the time against him, and for his other indebtedness then due or thereafter to become due. The principal question for determination related to the validity of the mortgage of Whitney to the national bank, so. far as it applied to future advances to him. It was contended by Whitney that the mortgage to tlie bank, so far as it applied to future advances, was invalid, because a mortgage of that character was prohibited by section 5137 of the Revised Statutes. The Supreme Court of the United States, in overruling this contention and referring to the construction of that act given in National Bank v. Matthews, supra, said:
“The construction of the act of Congress thus given has been acted upon by the national hanks throughout the country ever since it was published. It is not unreasonable to suppose that they have conducted their business and made loans to a large amount in reliance upon it, and that in many cases great injury would follow a departure from it. Judicial decisions affecting the business interests Of the country should not be disturbed, except for the most, cogent reasons; certainly not because of subsequent doubts as to their soundness. The prosperity of a commercial country depends, in a great degree, upon the stability of the rules by which its transactions are governed. If there should he a change, the Legislature can make it with infinitely less derangement of those interests than would follow a new ruling of the court, for statutory regulations would operate only in future. The decision in the cose cited controls the present case, and in conformity with it we must hold that the mortgage to the bank, so far as the subsequent incumbrances are. concerned, is to be regarded as a valid security for the future advances to the mortgagor. Whatever objection there may be to it as security for such advances from tlie prohibitory provisions of the statute, tlie objection can only be urged by the government.”
In Reynolds v. Crawfordsville Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733, the Supreme Court, again construing section 5137 of the Revised Statutes, said:
“The National Banking Law (Revise Statutes, § 5137) provides that a national banking association may purchase such real estate as shall be mortgaged to it in good faith by way of security for debts previously contracted. The power to purchase the real estate in dispute was therefore clearly conferred by the statute. The fact that, in order to secure the same debt, it purchased other real estate not mortgaged to it, cannot affect the title to the land which it was authorized to purchase. But if there was any force in this objection to the title, it could not he raised by the debtor, for where a eorporar*328 tion Is incompetent by its charter to take a title to real estate, a conveyance to it is not void, but only voidable. The sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose”—citing National Bank v. Matthews, supra, National Bank v. Whitney, supra, and Swope v. Leffingwell, 105 U. S. 3, 26 L. Ed. 939.
In Thompson v. St. Nicholas National Bank, 146 U. S. 240, 13 Sup. Ct. 66, 36 L. Ed. 956, the Supreme Court said:
“It has been held repeatedly by this court that where the provisions of the National Banking Act prohibit certain acts by banks or their officers, without imposing any penalty or forfeiture applicable to particular transactions which have been executed, their validity can be questioned only by the United States, and not by private parties.”
In Schuyler National Bank v. Gadsden, 191 U. S. 451, 24 Sup. Ct. 129, 48 L. Ed. 258, the doctrine was again reiterated by the Supreme Court in the following language:
“It is no longer open to controversy that the provisions of the statutes of the United States forbidding the taking of real estate security by a national bank for a debt coincidently contracted do not operate to make the security void, and thus enable the individual who has contracted with the bank to defeat recovery, but simply subject the bank to be called to account by the government for exceeding its powers.”
Section 5234 of the Revised Statutes of the United States (Comp. St. 1913, § 9821), after providing for the appointment of receivers for defaulting national banks, provides as follows:
“Such receiver, under the direction of the Comptroller, shall take possession of the Books, records, and assets of every description of such association, collect all debts, dues, and claims belonging to it, and, upon the order of a court of record of competent jurisdiction, may sell or compound all bad or doubtful debts, and, on a like order, may sell all the real and personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce the individual liability of the stockholders. * * * ”
On October 6, 1897, pursuant to a petition filed by Baker as receiver of the bank, the Circuit Court of the United States for the District of Washington entered an order authorizing and empowering Baker to sell at private sale “all assets of the insolvent bank which were in his judgment bad and doubtful, consisting of bills receivable, judgments, overdrafts, stocks, bonds, warrants, securities, assessments upon the stockholders of said bank, and other personal and chattel property and evidences of indebtedness.” This was the only order for the sale of assets of the bank made by the court. The authorization therein given was clearly insufficient to warrant the assignment of the
But there is a stronger reason why the order of the court was insufficient to confer upon the receiver authority for the assignment to Simpson. The assets to be sold were stated to consist of “bills receivable, judgments, overdrafts, stocks, bonds, warrants, securities, assessments upon the stockholders of said bank, and other personal and chattel property and evidences of indebtedness.” The order of the court in- terms applied only to personal property. Under the decisions of the Supreme Court of the state of Washington, the interest of the bank in the tide lauds under the agreement to purchase was real estate. Washington Iron Works Co. v. King County, 20 Wash. 150, 54 Pac. 1004; Trimble v. Superior Court, 31 Wash. 445, 72 Pac. 89, 66 L. R. A. 897; State ex. rel. Wilson v. Grays Harbor & Puget Sound Ry. Co., 60 Wash. 32, 110 Pac. 676.
The order of the court of October 6, 1897, did not authorize the receiver to sell real estate, and no order was ever entered or made by the court authorizing such sale. But whether the sale and assignment of the contract by Baker, as receiver, to Simpson, without an order of the court, could alone be made a sufficient basis for a decree in favor of the plaintiff in this suit, is a question we do not decide. The fact that there was no order made for the sale of the contract, and it was therefore made and assigned without legal authority, is in and of itself evidence tending to show the concealment and fraudulent character of the transaction.
3. The contract for the purchase of the tide lands was assigned by Baker, as receiver of the bank, to Simpson, on the 26th day of November, 1897. The consideration named therein was $198.80. The real consideration, according to the testimony of Baker, was $50; the balance of the consideration named in the assignment, to wit, $148.80, representing the first payment on the contract which had been made by the bank to the state of Washington at the time of the execution thereof. Baker further testified that the contract covering block 430 was resold by Simpson to him, at his request, in March, 1899, for between $300 and $400, which represented the purchase price paid by Simpson, $198.80, plus the payment of March, 1898, to the state of Washington, $148.80, together with interest. No written assignment of the contract, or other document evidencing the transfer, was ever
' The title to the contract remained in Simpson from the date of its assignment to him by Baker, as receiver, until August, 1905. At about this time, according to the testimony of Baker, he took up with Simpson the matter of acquiring the legal title to the contract. Simpson had made all of the annual payments to the state of Washington pursuant to the terms of the contract. Baker testified that he gave to Simpson his note for the amount of these various payments, and at his (Baker’s) request the title to the contract was placed in the name of Algernon S. Norton, Baker’s New York attorney. The record shows that the assignment from Simpson to Norton was executed on August 11, 1905. Thenceforth the contract of purchase, and (after the issuance of the patent by the state of Washington to Norton on October 16, 1905) the legal title to the tide lands, remained in Norton until the organization of the Seattle Water Front Realty Company in August, 1907. The property was then transferred by Norton to the Realty Company, at the -request of Baker, in payment of the complete issue of its capital stock of $250,000. About 95 per cent, of the stock was issued to Baker, or to others in trust for him, and he is at the present time the owner of all of the stock of the Realty Company, with the exception of a few shares held by his friends for voting purposes. Despite Baker’s ownership of practically all of the stock of the Realty Company, neither at the time, of the organization of that company nor at any time since its organization has he held office in the company in any capacity.
Baker testified that at the time of the assignment of the contract by himself, as receiver of the bank, to Simpson, he reserved no interest, present or expectant, therein, nor did he at that time have any expectation of ever acquiring any interest in the contract. But we are of opinion that the testimony of the other witnesses in the case, viewed in the light of all of the circumstances surrounding'the transfer of the contract- to Simpson, as well as the transactions relating to the subsequent transfers of the contract, contradicts Baker’s testimony, and conclusively establishes the fact that the assignment of the contract for the purchase of the tide lands by Baker, as receiver of the bank, to Simpson, was made with a secret understanding between Simpson and Baker that the contract should be held in trust by Simpson for the use and benefit of Baker.
It appears from the record that the Klondike gold discovery in Alaska occurred in July, 1897. There is abundant testimony tending to show that real estate generally in Seattle, and the tide lands particu-r larly, were greatly increased in value by reason thereof, and that the fair market value of block 430 of the Seattle tide lands in November, 1897, was $5,000.- The contract for the purchase of this block was com veyed by Baker, as-receiver, to Simpson; for $198.80. The testimony-further tended to show, and the court below found, that, the market value-of block-430 in March, 1899, was from $5,000 to $15,000. Baker
Francis Rotch, a witness for the plaintiff, testified that he had been bookkeeper and private secretary to Simpson from 1898 to the time of Simpson’s death in 1906. He testified to> a conversation with Simpson in 1900 respecting an interest payment which had become due on block 430. Upon asking Simpson if he should pay it, Simpson replied: '
“Yes, pay it; but that belongs to Charlie Baker.”
The witness testified that he paid the interest and charged it against Baker in his books. This witness testified tO' a further conversation with Simpson about 1902. It seemed that Simpson had been selling a lot of his holdings for the purpose of securing cash. In response to a question of the witness as to whether he could dispose of block 430, Simpson replied:
“No; Mr. Baker put that in my hands, and I have held it in trust for him right along. We can’t dispose of that.”
Lester Turner, a witness for the plaintiff, testified to a conversation with Simpson respecting tide lands, in the year 1898 or 1899, as follows :
“He told me that a portion of these lands belonged to Charlie Baker; that he was carrying the title for Mm, to accommodate him.”
Turner testified to a second conversation with Simpson, a year or two later, as follows:
“I asked him how he came to hold the title to that property that belonged to Baker. ‘Well,’ he said, ‘Baker didn’t want it known that he had taken the property while he was receiver of the bank and it might not bear investigation,’ and be was carrying it for him for that reason.”
Mark E. Reed was a son-in-law of Simpson, and had charge of the properties of Simpson under a general power of attorney. Reed testified to a conversation between himself and Simpson with respect to the tide lands, in 1904, as follows:
“He said: ‘Now, these West Seattle tide lands belong to Charlie Baker, When you are reimbursed for the amount we paid on it, you transfer it.’ ”
Baker testified that Simpson had made the payments to the state of Washington called for by the contract of purchase, subsequent to its assignment to him, and prior to the repurchase by Baker in March, 1899. But there was introduced in evidence the following letter, writ*
“I had a talk with Mr. Simpson in S. F. about the tide lands which he holds in trust for me. I asked him if. he would take my note in settlement of the advances he has made, together with the interest accrued thereon. The first two or three payments I made myself. Mr. Simpson’s books, however, will show the status of the account. There is one more payment due next March to complete the contract with the state. Mr. S. stated that you held his general power of attorney and would assign the certificate back to me or my order. I wish you would compile a statement of the account I owe to Mr. Simpson, and send same, together with note for the account, due one year after date, which plan Mr. S. consented to and will doubtless advise you to that effect. I may be away several months, and I may have occasion to use the item, or to dispose of it, and so I think it had better be put in the shape indicated. My address will be as below. I believe there is an item to my credit also of a certain sum for right of way across the tract sold to the N. P.”
We agree with the court below that:
“There was a condition of mind between Baker and Simpson, express or otherwise, which was that Baker should have block 430. When the relation of the parties, the value of the land, and all of the circumstances as disclosed by the evidence, are analyzed and applied, together with the suppression of the ownership of defendant Baker, the conclusion is inevitable.”
The rule is laid down by the text-writers, and adhered to in many authoritative decisions, that if an agent or trustee, in the sale of property of his principal, purchases it himself, or any interest therein, either directly or through the instrumentality of a third person, without the knowledge or consent of the principal, the sale is voidable, and may be set aside at the option of the principal. Mechem on Agency, §§ 455, 461; Michoud v. Girod, 4 How. 503, 11 L. Ed. 1076; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304; Mills v. Goodsell, 5 Conn. 475, 13 Am. Dec. 90; Bain v. Brown, 56 N. Y. 288.
The rule is one calculated to promote fair dealing between an agent or trustee and his principal. It is but one of the many safeguards which the law has thrown around those occupying positions of trust and confidence. It prohibits an agent or trustee from becoming a party to a transaction in which he may be in a position to injure his principal. As stated by Judge Manning in People v. Township Board of Overyssel, 11 Mich. 222, 225:
“So careful is tbe law in guarding against the abuse of fiduciary relations that it will not permit an agent to act for himself and his principal in the same transaction, as to buy of himself, as agent, the property of his principal, or the like. All such transactions are void, as it respects his principal, unless ratified by him with a full knowledge of all the circumstances.”
The leading case in the United States upon this subject is Michoud v. Girod, 4 How. 503, 11 L. Ed. 1076. In that case a piece of property had been sold at a fair price at a legally conducted judicial sale. The purchasers within a short time reconveyed it to the executors individually. It was decided that the purchasers at the sale were purely nominal. The Supreme Court said:
“The morality and policy of the law, as it is administered in courts of equity, induce us to add that these purchases were fraudulent and void, and may be*333 declared to be so, without further inquiry, upon the ground that they were made by the intervention of persons who were nominal buyers of the property for the purpose of conveying it to the executors. Such a transaction carries fraud upon the face of it. * * * The rule of equity in every jurisdiction with which we are acquainted is that a purchase by a trustee or agent of the particular property of which he has the sale, or In which he represents another, whether he has an interest in it or not—per inter positam personam— carries fraud on the face of it.”
in Boynton v. Brastow, 53 Me. 362, real estate had been sold by executors and subsequently purchased by one of them at the price for which it had been sold. The court said:
“It is enough, however, for us to know that the property was redeeded to one of the trustees for thd same consideration for which it was sold, before his duties as trustee were ended. Equity will not permit a trustee thus to deal .with a trust property, except lor the benefit of the cestui-que trust. Sound policy requires all the skill and efforts of a trustee to be used for the benefit of the cestui quo trust, and to sdeure this end his private interest must not be allowed to come in conflict with his duty. If a trustee should be allowed to sell the trust’s estate, and then immediately buy it back for his own benefit, his private interest would be in direct conflict with his duty. To enable him to buy cheap, ho must sell cheap. Instead of making known its good qualities, and its real value, and the true state of the title, he would be Influenced to disparage the estate, by concealing, as far as he could, everything which would enhance Its value, and to avoid clearing up any clouds that might hang over the title.”
In Robertson v. Chapman, 152 U. S. 673, 14 Sup. Ct. 741, 38 L. Ed. 592, the facts were as follows: One Polk had been appointed as agent of the plaintiff, Robertson, for the purpose of selling certain real property to M. O’Donohoe. O’Donohoe was unable to complete the payments under his contract of purchase, and before the deed was delivered to O’Donohoe, and while the same was in the hands of Polk, the agent, to be delivered upon payment of the balance of the purchase price of the land, Polk took over the O’Donohoe contract and completed, title in himself. Robertson subsequently brought suit against Polk and his partner, Chapman, to set aside the transaction, on the theory that Polk could not properly have taken title to the property. Mr. Justice Harlan, delivering the opinion of the Supreme Court of the United States, said:
“If an agent to sell effects a sale to himself, under the cover of the name of another person, he becomes, in respect to the property, a trustee for the principal, and at the election of the latter, seasonably made, will be compelled to surrender it, or, if he has disposed of it to a bona fide purchaser, to account, not only for its real value, but for any profit realized by him on such resale.”
The court found that Polk had not been guilty of dereliction of duty; that while there was some evidence tending to show that he desired, from the outset, to acquire an interest in the property, it did not appear that he intended to practice any deception upon the plaintiff. The court also found that Polk had not intended to conceal the fact of his purchase of the property. It accordingly was held that the rule quoted was not applicable to the facts of that case. The court said:
“A real bona fide sale of the property, through the agency of Polk, and upon the terms prescribed by the plaintiff, and which sale was substantially completed between vendor and vendee, intervened between Polk’s acceptance of*334 the position of agent and his purchase of the property from the plaintiff’s vendee. Upon this ground, the decree below can be sustained, without impairing, in any degree, the rule that an agent will not be permitted to become the purchaser, without the knowledge or consent of his principal, of property committed to him for sale.”
'The defendants earnestly contend that the facts of the present case bring it within the rule laid down in Robertson v. Chapman. It is obvious that' that rule is inapplicable here. Baker’s deceit, as we have-seen, is well established. Furthermore, no real bona fide sale of the-contract for the purchase of the tide lands had intervened between Baker’s appointment as receiver of the bank, and his purchase of the contract.
•‘In general, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not to exclude relief. Prevost v. Gratz, 6 Wheat. 481 [5 L. Ed. 311]. Generally speaking, when a party has been guilty of such laches in prosecuting his equitable title as would bar him if his title were solely at law, he will be barred in equity, from a wise consideration of the paramount importance of quieting, men’s titles, and upon the principle that ‘expedit reipublicse ut sit finis litium’; although the statutes of limitation do not apply to any equitable demand, courts of equity adopt them, or at least generally take the same limitations-for their guide, in eases analogous to those in which the statutes apply at law. 10 Ves. 467; 1 Cox, Ch. 149. Still, within what time a constructive trust will be barred must depend upon the circumstances of the case. Boone v. Chiles, 10 Pet. 177, 9 L. Ed. 388. There is no rule in equity which excludes the consideration of circumstances, and, in a case of actual fraud, we believe no case can' be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom'the fraud is proved, or within 30 years after it has been discovered or becomes known to the party whose rights are affected -by it.” Michaud v. Girod, 4 How. 502, 560, 11 L. Ed. 1076.
The decree of the court below is affirmed.
