195 F. 330 | N.D. Ill. | 1912
A. B. Meyer & Co. present to the court their petition herein for leave to intervene, based upon the following facts, viz.: In the year 1902 petitioner entered into a contract with the railway company to transport coal during the years 1902 and 1903 from certain mines in Indiana to Indianapolis, at a rate of 40 cents per ton, being the then published freight rate, for a valuable consideration. Petitioner performed its part of ‘ said contract, and a large amount of coal was so transported. Thereafter the published rates were advanced, first, to 50 and again to 60 cents per ton. Petitioner was obliged to pay said advanced rates, and did so on the promise that the excess over 40 cents per ton would be refunded immediately—not as a rebate, the petition states, but as belonging to petitioner. A statement of such excess, amounting to $9,634.75, was presented as a claim to the railway company during the year 1903. On Eebruary 22, 1906, petitioner was notified by the railway company that its claim was vouchered, and would be paid by the treasurer of the railway some time in February, 1906.
The petitioner alleges, further, that a voucher was so issued to petitioner for $7,124.33, in part payment, and that, by some arrangement with the Big Four Railway Company, that company paid petitioner one-half thereof, to wit, $3,562.16, leaving a balance of $3,562.17 unpaid upon said voucher, or a balance of $6,072.59 still unpaid on said claim of $9,634.75. It does not appear that the balance of $2,510.42 was ever vouchered. Nothing further was paid upon said claim prior to the appointment of the receiver, and the amount unpaid upon said voucher was proved up as a general claim herein before the special master for $4,817.38 on July 6, 1909. On November 27, 1909, petitioner was advised by the receiver through his solicitor by letter to the effect that he did not anticipate any objection to the allowance of the claim as 'presented, and saying he knew of nothing further petitioner need do in the matter, that the claim would have to take its course with the other claims, and that it might be some time before results. On September 21, 1911, petitioner claims to have for the first time been advised that the claim had not been allowed as a preferred claim, and that there would be no funds with which to pay general claims, and thereupon presented its petition for leave to file an intervening petition setting forth its alleged rights and claims as a preferred creditor of said Southern Indiana Railway Comiiany, and as having a lien and equity superior to the lien and equity of the trustee and those claiming under said general trust deed of May 1, 1906. In the meantime, and on May 27, 1910, the decree of sale in said cause was entered, wherein it is provided in article 11 thereof that:
“The purchaser shall also, as a part of the consideration and purchase price of the parcel of properties purchased and in addition to the sum bid, take said property and receive the deed or deeds therefor upon the express condition that he or his successors or assigns shall pay in cash so far as*332 they are not paid, satisfied, and discharged out of the purchase price paid in cash or the funds in the' hands of the receiver, any unpaid costs and expenses of this cause, * * * and also all other unpaid indebtedness and liabilities contracted or incurred by the Southern Indiana Railway Company, which shall have been heretofore presented to this court, either by filing an intervening petition herein or filing ,a claim with the special master (appointed by the former order of this court) and which may be prior in lien or superior in equity to the general mortgage and the bonds secured thereby upon the court adjudging the same to be prior in lien or superior in equity to said general mortgage and the bonds secfired thereby and directing the payment thereof.”
True, the petition alleges that:
“The Southern Indiana Railway Company took said sum of $9,634.75, and expended the same or a great part thereof for labor, supplies, equipment, and improvements on said line of the said tbe Southern Indiana Railway Company, and for interest on its bonded indebtedness, including the interest on the debt secured by mortgage of May 1, 1906, hereinafter mentioned, as your petitioner is informed and believes.”
While this does not amount to a direct allegation that such disposition of the fund was made, those facts may be assumed for the purposes of this hearing. How do they operate to give petitioner any lien? As above noted, the matter stood for several years as an unadjusted open account.
In Gregg v. Metropolitan Trust Company, 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717, the claim to a lien prior to the mortgage lien was rejected upon the ground that the claim itself exhibited no special equity, although it had reference to railroad ties furnished for rail
“The ground of such allowance as was made wa.s not merely that the supplies were necessary for the preservation of the road, hut that the payment was necessary to the business of the road—a very different proposition.”
In the present case no such state of facts appears as would justify the court in finding that petitioner was entitled to participate in the corpus of the railroad at the expense of the prior mortgagee.
Neither do the records up to the date of sale, so far as the court has been able to ascertain, disclose any data from which a purchaser could be charged with knowledge of petitioner’s right to a prior lien, or of his obligation to liquidate petitioner’s claim as a part o t the purchase priee. If this be so, then petitioner’s demand that the court shall place him in a position to make such a claim now seems to be without right, and therefore does not furnish just grounds for disturbing the sale or mulcting the purchaser. The cases of Swann v. Wright’s Executor, 110 U. S. 590, 4 Sup. Ct. 235, 28 L. Ed. 252, Compton v. Jesup, 167 U. S. 1, 17 Sup. Ct. 795, 42 L. Ed. 55, Central Trust Company v. Grant Locomotive Works, 135 U. S. 207, 10 Sup. Ct. 736, 34 L. Ed. 97, Central Trust Co., etc., v. Georgia Pacific Railway Company, 87 Fed. 288, 30 C. C. A. 648, Kneeland v. Luce, 141 U. S. 491, 12 Sup. Ct. 32, 35 L. Ed. 830, and others cited by petitioners, all proceed upon the assumption that the purchaser had notice of a pending claim for a lien superior to the mortgage lien. In those cases it was properly held that the purchaser would not be heard to again contest such claims as were contemplated in the decree after the court had allowed them as prelerred claims. This rests upon grounds in the nature of estoppel. In effect, the decisions in those cases, as in this, hold that the final disposition of the rights of parties whose claims are to he thereafter adjusted should be determined by the court as presented, and that the purchaser should be bound by such judgment of the court. But no such rule of law could be applied in a case where the possibility of the allowance of such a claim was not, and could not have been, in contemplation of the purchaser. Filing the claim as a general demand with the master was not such a presentation of the question of a preferred claim as the law required ; and the language of the decree, “which shall have been heretofore presented to this court, either by filing an intervening petition herein or filing a claim with the special master,” cannot mean less than that the purchaser should, by such filing, be advised of the character and
The request is therefore denied.