56 Tex. 269 | Tex. | 1882
It is conceded by the distinguished and diligent counsel, both for the appellants and appellees, that they have been unable to find a re
It has not been deemed necessary to pass upon several of the minor questions raised, but upon the more important only.
The jurisdiction of a court of equity to prevent loss arising from an accidental cause is of very ancient origin, probably coeval with its existence as a distinct branch of jurisprudence, and one of the three original grounds for equitable relief. 1 Story’s Eq., § 79; 1 Wait’s Actions and Defenses, 183; Bispham’s Principles of Equity, §177.
The flexible powers of a court of equity are peculiarly adapted to such cases, to enforce the rights of the one and to protect those of the other party. If the plaintiffs, Origen Sibley et al. (as they claim to be), and as found by the court below, are the legal owners of one share of stock, evidenced by certificate No. 191, in the Galveston City Company, the defendants below, and if this certificate has been lost, then justice and good conscience would require that they should be relieved. This is not denied'by the company, but the main controversy in the case arises upon the questions whether the plaintiffs have shown themselves to be the parties entitled to relief, and as to the mode of this relief. It is denied that the mere fact of the loss of the certificate does of itself authorize the resort to a court of equity.
This is not simply a suit to establish the mere loss of the original certificate, as though an ordinary indebtedness for which relief could be had at law, but one under our blended system of law and equity, in which not only the former existence, validity and contents of the certificate are sought to be established, but also its loss, the ownership of the plaintiffs, and, as a consequence, their present and prospective enjoyment of the rights, powers
But it is a cardinal principle of equity, that although the company, even had it shown a desire so to do, could not profit by the misfortune of the plaintiffs, yet the court will grant relief only upon the condition that full and secure indemnity must be given to the company against all risk. The company is in no default, and to the misfortune of the plaintiffs must be added this burden. Chesapeake & Ohio Canal Co. v. Blair, 45 Md., 102; 1 Wait’s Actions and Defenses, 165; Jones on Railroad Securities, § 389.
This indemnity should be governed by the circumstances of the particular case. If not only the loss, but also the destruction of the instrument and the ownership of the plaintiffs, should be clearly shown, then, if required at all, it would, as a general rule, be but nominal.
Ordinarily, when relief has been granted in cases of lost instruments, assignable or negotiable, it has been
Where, however, the obligation has considerable time to run before it would mature or be barred by limitations, greater risk would be incurred, and particularly if the lost negotiable instrument should be substituted by one of like character.
In the case of the Chesapeake & Ohio Canal Company v. Blair, 45 Md., 102, where the instrument lost was a negotiable coupon bond which had still several years to run, the risk was lessened by the issuance of a nonnegotiable certificate, payable at the same time as the bond. The only probable risk in such case would arise from the payment of the interest. Such precaution was a salutary one. To require that the defendant company, in the present case, should substitute the alleged lost certificate of stock, which was assignable by transfer accompanying it, without being required to be upon the books of the company by a new certificate not defeasible on its face, would be to demand that which the company is not under either a legal or moral obligation to perform. This, in the event the original certificate was not in fact lost, might force the company to recognize and pay a share of stock not voluntarily issued by them, and which would to that extent lessen the value of those previously issued. And besides, in the event the number of shares authorized by the charter had already been issued, then under the guise of judicial authority the company might
Under a proper construction of the judgment below, the right of the plaintiffs to the share of stock is defeasible both in their own hands and that of their assignees; yet this should appear so plainly as not to be the subject matter of controversy.
Again, the amount of the indemnity required of the plaintiffs should depend very much upon the rights sought to be exercised by them. It has not been the policy of the company to declare dividends, but to permit the stock to be absorbed in the purchase by the shareholder of lots of the company at a valuation placed thereon; the profits to the remaining shareholders being the appreciation of their stock by increase in the value of city property. If the plaintiffs then simply seek, to participate in the meetings of the company and to vote their stock, then the bond of indemnity required of them would be comparatively nominal. If, however, when otherwise entitled to it, they should seek to receive the exclusive possession, control or ownership of their share of the capital stock, assets, or other property, real or personal, tif the company, or to any dividend or share thereof which may be declared, this bond of indemnity should be proportioned to the increased risk. As the testimony shows that the value of this stock is fluctuating—from 1841, when first issued, to 1852, not exceeding $150, having since reached as high as $10,000, and being now estimated at $7,000,— and as the charter of the company seems to have no provision limiting its existence, the amount of the bond provided for in the contingency last above named, and the sufficiency of the security thereto, should be determined by the court, after a hearing by the parties, when the necessity therefor arises.
In view of the fluctuating value of this stock; the uncertainty when the necessity may arise for such bond of
As the decree of the court below is, in our opinion, not sufficiently comprehensive to fully meet the circumstances of this case, it will be so reformed in this court as to conform to this opinion; and it is accordingly so ordered.
Judgment reformed.
The following is the decree as reformed.
It is ordered that the judgment below be so reformed as to read as follows:
It is therefore considered, adjudged and decreed by the court, that the plaintiffs (here name them) are the legal owners of one share of stock in the Galveston City Company, to wit, the share represented by certificate No. 191, Book A, now standing in the name of Origen Sibley on the books and records of said company. That said share of stock No. 191 is a valid legal share of stock in said company, and that this decree or a certified copy thereof is and shall be held as the evidence of the right, title and interest of said plaintiffs in and to said stock, and to remain in full force and effect as such, unless said original certificate of stock shall hereafter be produced, and the superior right and title thereto be established to be in some other party, either by the agreement of the parties in open court or by the judgment of some court
It is further considered, adjudged and decreed by the court, that the said plaintiffs shall make, execute and deliver to said Galveston City Company a good and sufficient bond of indemnity, with sureties residing within the state of Texas, or security situate therein, conditioned that the plaintiffs will fully indemnify and hold harmless said company against any and all loss or damage that may accrue to it in the event that said alleged lost certificate of stock rio. 191 may hereafter be claimed and established to belong to any other person than said plaintiffs,— said bond of indemnity to be approved before delivery by the district court of Galveston county if in session, or by the judge thereof if in vacation. And that until said plaintiffs shall demand from said company any right to the exclusive possession or ownership of any of the capital stock, assets or other property, real or personal, of the company, or of any dividend or share thereof, that sa' 1 bond shall be in the sum of $500, and shall be presented within a reasonable time; that is, before or within ninety days after the adjournment of this
It is further considered, adjudged and decreed, that if at any time before the rights of the parties shall have been finally established, adjusted and settled by agreement, limitation or otherwise, it be made to appear to said court or judge thereof that the indemnity for past payments is insufficient, or has become insecure, that then the said court or judge thereof shall make it a condition precedent to the receipt of any further capital stock, assets, real or personal property, or of any dividend or share thereof, that additional indemnity be given in respect to such payments previously made as well as those thereafter demanded; and that the giving of one new bond of indemnity shall not prejudice any rights under those theretofore given, the conditions of which have not been already performed; and that the failure or refusal to give any new or additional bond as above provided for shall have the effect to suspend the further operation of this decree, and the right to demand any future benefits thereunder until said bond shall be given and approved.
It is further ordered, that for the purpose of carrying out this decree, and until the rights of the parties shall have been fully adjusted, established and settled, that this cause remain open upon the docket of the court below.
