35 F. 682 | U.S. Cir. Ct. | 1888
The fair conclusion from tho evidence in this cause is that on March 30, 1875, Josiah Morris agreed with F. M. Gilmer, who was at the time acting for liis son, J. N. Gilmer, tho complainant, that the stock which is the subject-matter of this suit, to-wit, 60 shares of the capital stock of the Ely ton Land Company, should be held by him, Morris, or by his banking firm of Josiah Morris & Co., as collateral security for the payment of an interest account of about $500, and for about$230, which sum Morris about that time paid in discharge of an execution which had been levied upon the stock, which stock at that time stood in tho name of J. N. Gilmer upon tho books of tho company. The execution was in favor of a creditor of the firm of Gilmer, Browder & Co., of which firm J. N. Gilmer was a member, and, when paid, the stock was transferred by J. N. Gilmer to Josiah 'Morris on the books of the company. The certificate of the stock was at the time in the possession of Josiah Morris & Co., and liad been in their possession since its issue in 1871, when it was pledged for tho payment of the purchase money of the stock, which some time thereafter was paid by a sale of one-half of the original 120 shares, which left 60 shares of the stock in pledge for a balance of interest of about $500 due from complainant to Morris & Co. It also appears from the evidence, as a fair conclusion therefrom, that the stock in question was not only to bo held by Morris & Co. as collateral security for the payment of the indebtedness which J. N. Gilmer then actually owed Morris & Co., but the stock was to be a basis of credit for future liabilities. In the language of F. M. Gilmer, he (meaning Morris) “was to hold the stock for that advance,” (meaning the amount paid to settle the execution which had been levied upon the stock,) and “for all future liabilities of the said J. N. Gilmer.” At the time mentioned, March, 1875, there was in existence the firm of Gilmer & Donaldson. Donaldson died in the year 1876, and the firm was succeeded by the firm of J. N. Gilmer & Co., and that firm by the firm of Gilmer & Clanton, and that again by the firm of Gilmer & Merritt. J. N. GiD mer was a member of all these firms, all of which did business in Montgomery, Ala., and bad bank accounts with the house of Josiah Morris ife Co. It does not very clearly appear from the evidence the precise periods of time that these firms did business with Morris &Co., but that they all did business with, and had accounts with, Morris & Co. in the order named is not questioned, and the last firm of Gilmer & Merritt seems to have carried their business to the year 1884, when a contention arose about a draft of $100, drawn by Gilmer & Merritt, which Morris & Co. refused to pay. The evidence shows that F. M. Gilmer, on and after the 30th day of March, 1875, did make arrangements with Morris & Co. for advances and credit to his son, J. N. Gilmer, and some of the firms with which he subsequently became connected. The testimony is not clear as to the times when these arrangements were made, or when the last time was that the stock in question was alluded to between the parties as a security and basis of credit; but F. M. Gilmer says: “These interviews and conversations extended down to the time that Clanton became a partner in the business, and, indeed, I think during
But without quoting further from the testimony, it seems pretty clear that we have here the pledge of the stock as collateral security for debts due and to be created, and to become due after the 30th day of March, 1875. We have here, then, not merely the existence of a pledge, but we have the nature and character of the pledge, for it was not simply the' pledge of the stock to secure the payment of a debt of a specified amount maturing at a definite time in the future, but it was in the nature of a-continuing pledge or security; and so long as such relation and understandingvexisted between the parties in reference to the pledge, it must •be admitted that the pledgee (Morris, in this case) was holding in virtue of the title and right of the pledgeor, Gilmer, and could not be considered as holding adversely to such title and right, for there is perhaps no principle of law better settled than that possession, to give title, must be adversary. Whatever difficulty there may be from the evidence to fix the time or times after the 30th of March) 1875, when F. M. Gilmer .negotiated with Morris for advances of money and credit to J. N. Gilmer, or to the firms with which he became connected, upon the faith of this stock as collateral security, it is certainly clear that Morris & Co., on and after the 30th day of March, 1875, did hold the stock in question as collateral security, and did have accounts and do business with the different firms with which J. N. Gilmer became connected, and did advance money to some of them by paying their checks when they had no money.on deposit with Morris & Co. at the time the checks were drawn and paid.
The defense here is staleness of the demand, and laches on the part of the complainant, ánd the statute of limitations of six years of the
It is not questioned, as far as we know, by any authority, that the pledgeor may always claim at least the period of six years, or the full period of time during which the pledgee is permitted to sue upon his secured debt or engagement. In Humphres v. Terrell, 1 Ala. 650, it was held that the right both of a pledgeor and of a mortgagor to redeem personal property would be barred in six years; and the plea of the statute of limitations of six years in that case was held good as a bar to the pledgee’s right to redeem without any positive evidence of an adverse possession.”
The court, however, in the same page, recognizes a distinction between a pledge and a mortgage, when it says:
“The case of a mere pledgee, it is apprehended, is different in some material respects from that of a mortgagee in possession, in whose favor the statute of limitations commences to run from the law-day of the mortgage, because of his presumed adverse holding from that time.”
It would seem doubtful at least if the' court intended to settle the law in Alabama that in the case of a pledge of stocks as collateral security the presumption of an adverse holding on the part of a pledgee would
. It is insisted, however, that the evidence shows that the complainant never had any right to or interest in the stock which is the subject-matter of this suit; that the only interest he ever had in it was the mere option to purchase it at a given price, which option was never closed by the payment of the purchase money. If it wás a mere option in the first place, and based upon no consideration, yet the fact remains that the stock was paid for, except'as to the interest for the time Morris carried it, and his conduct in regard to it afterwards shows that, whatever may have been his strict legal rights in regard to the stock, he did not
The respondent offers in evidence the briefs of counsel, and the record of the cause in the state court, to show that the question of the statute of limitations and staleness of the demand in suit were in point of fact heard and determined by the decree in the state court. To this evidence the complainant objected, and contends that these questions were not tendered in issue by his bill in the suit in the state court, anti therefore not pertinent here; that a decree of a court must be confined to the allegations in the pleadings upon which it is founded, and that arguments and proofs and decrees of courts outside of the scojie of the pleadings cannot be held to be matter of estoppel, and will be restrained by construction to the matter in issue in the pleadings. This is not a case of vagueness and uncertainty as to what the issues were which were matter of decision in the state court, nor is it a case of contention as to what matters were decided as between defendants to a bill, as in the case of Corcoran v. Canal Co., 94 U. S. 744. And upon this hearing it does not seem that the question of res adjudícala is presented in other or stronger light in favor of trie respondents than it was in the hearing on the sufficiency of the jilea in bar to this suit. 30 Fed. Rep. 476.
Since this case was heard, my attention has been called to the recent case of Bissell v. Spring Valley Township, 124 U. S. 225, 8 Sup. Ct. Rep. 495. Whatever may be said of the case, it is quite different in its facts from the case at bar, and the point decided there seems to be that the finding of facts in a former suit, upon demurrer, which were fatal to the bonds from which the coujions in suit were cut, was equally fatal to a suit between tlio same parties upon other coupons cut from same bonds as if the facts in the first suit bad been found by the verdict of a, jury. It may be said in that case that there was no new or different cause of action set up in the second suit, which was an attempt to recover on other coupons, it is true hut coupons, of the same bonds which had been found to have been issued without authority of law, and therefore void. This case and the case of Cromwell v. Sac Co., 94 U. S. 351, are eases of suits at law upon coupons, issued by municipal corporations, and in that class of cases there is little ground for a distinction between the cause of action and the subject-matter of the action. In the case at bar the suit is not upon bonds, which are at the same time the cause and subject-matter of the action, but it is a suit in equity, for the same right as the former suit, but asserting a new and distinct cause of action. Even in this Spring Valley Case, the court, at page 232, says there are undoubtedly many cases where a final judgment upon a demurrer will not conclude as to a future action; the demurrer may go to the form of the