132 F. 305 | 3rd Cir. | 1904
These are two appeals by William C. Bullitt from decrees of the Circuit Court of the United States for the District of New" Jersey entered, respectively, on July 6, 1903, and January 8, 1904, in the consolidated cause in equity of the Land Title & Trust Company v. Henry Tatnall, Receiver of the Asphalt Company of America, and others, denying the appellant’s petitions for leave to intervene in the cause and for other relief. The appellant is the holder partly in his own right and partly in a representative capacity of certain collateral gold certificates issued by the Land Title & Trust Company under an agreement between, that company and the Asphalt Company of America, dated July 15, 1899, whereby the latter company agreed to make certain payments to the Land Title & Trust Company, and as security for such payments to deposit with that company certain stocks and bonds, the holders of the said certificates being entitled to receive from the Land Title & Trust Company, out of the moneys so to be paid to it by the Asphalt Company, certain specified sums at designated times. Upon the appeals of Harry C. Spinks, which we recently heard and disposed of (127 Fed. 1), we had before us the above-mentioned agreement of July 15, 1899, and the affiliated agreement of December 31, 1900, for the further security of the holders of the certificates, and we then had occasion to consider the relation between the certificate holders and the Asphalt Company of Ameri
“The appellant (Spinks) is the owner of 133 of the collateral gold certificates issued by the Land Title & Trust Company under the agreement of July 15, 1899. The total amount outstanding of said certificates, as found by the master appointed by the court, and by the court in its decree of April 3, 1903, was $29,830,754.57. About 2,000 persons hold these certificates. It was not contemplated by the court, nor necessary, that the receivers should have presented to them for allowance certificates in the hands of individual holders, as the decree itself fixed the aggregate amount of them outstanding, and made it unnecessary for holders to prove their individual claims. The Land Title & Trust Company was not merely a trustee of property pledged or mortgaged to it, but was also the creditor' of the Asphalt Company of America. The Asphalt Company of America acknowledged the sum total of its indebtedness to the said the Land Title & Trust Company, and conveyed to it its property and effects in pledge to secure the same, the trustee, issuing the gold certificates to the various holders to the aggregate amount already stated, and making them its- cestui que trustent for the payment of the interest and principal, when received from the debtor company.- It was, therefore, the Land Title & Trust Company, as trustee, which was entitled, as creditor of the insolvent company, to prove the aggregate debt, including, of course, that part of it represented by the certificate held by the appellant. The decree of the court of April 3, 1903, fixed the status of the holders of collateral gold certificates as holders thereof in accordance with the agreement of July 15, 1899, between the Land Title. & Tr,ust Company and, the Asphalt Company of America, to the amount in par value of $29,430,754.57, and the holders of such certificates were therefore adjudicated to be entitled, through their trustee, as valid claimants secured by said agreement.
“The contention of the appellant that the direction to the receiver to receive proof of all debts and obligations of the Asphalt Company of America entitled him to present his claim as a holder of collateral gold certificates cánnot be supported. The receiver allowed and reported upon no claims of holders of collateral gold certificates, and it does not appear that any appli-, cation, other than that of the appellant, was made to him for that purpose. No good reason was shown why appellant’s case should be Segregated from that of 2,000 other holders, or that his security as such holder was in any way affected to his detriment by the decision of the receivers. The appellant became the owner of his gold certificates, subject to any limitations' imposed by the form, in which they were made; that is to say, the obligations entered by the Asphalt Company of America in and by said agreement of pledge or by the said trustee. The company covenants in said agreement to pay tó. the trustee the moneys necessary to pay interest on the certificates as they fall due, and also certain sinking fund amounts, and it is the trustee only who has, by the form of such certificate, direct obligation to the certificate holder, and in the said agreement of July 15, 1899,'it is expressly provided that,, ‘any proceedings^» enforce any covenant of the company herein contained by legal, proceedings shall be in tie name of the- trustee for the benefit of all the holders of the certificates outstanding.’ ” 127 Fed. 16, 17.
In conformity with the foregoing views, and upon great consideration, we, held that the appellant, Spinks, was (not entitled to intervene in this litigation by reason of his holding collateral gold certificates issued under this agreement of July 15, 1899, and that the court below rightly denied his petitions for intervention in the cause, although, besides be
Upon the appeals of Spinks we further held that the orders denying his petition for intervention were not appealable. Speaking for this court, Judge Gray there said:
“Such orders are not final decisions, in the sense of the statute, and are within the discretion of the court making them, unless it shall affirmatively appear that the petition of intervention was for the purpose of enforcing an individual right of the petitioner, for the assertion of which there is no other remedy, and which will be entirely lost if intervention is denied. If, for instance, a fund is to be distributed by tbe court in a suit then before it, tbe denial of a petition to intervene of one wbo claims tbe right to participate in tbe distribution by reason, of a title distinct and apart from all other individuals or classes to be affected by tbe decree would be a final decree as to such petitioner, for tbe reasons that his claim of right would be finally disposed of and lost by such denial. The petition to intervene in such ease is of right, and not addressed merely to the discretion of the court.
“The general rule, however, is as stated by tbe Circuit Court of Appeals in Hamlin v. Toledo, St. L. & K. C. R. R. Co., 78 Fed. 665, 24 C. C. A. 272, 36 L. R. A. 826: ‘The allowance or denial of the application of a stranger to be admitted as a party defendant to a pending suit in equity rests in tbe sound discretion of the chancellor. Tbe denial of such an application is not such a final decree as is the subject of appeal. * * ' * Such an application is a mere motion in tbe case, made by one not a party, and is not of itself an independent suit in equity appealable here.’ Ex parte Cutting, 94 U. S. 14, 22, 24 L. Ed. 49.
“Tbe application to intervene in both the first and third appeals was broadly upon the ground that the party by whom the interests of the intervener should be represented (in tbe one case the Land Title & Trust Company, trustee, and in tbe other tbe receivers) was not representing such interests properly. No individual or separate interest of tbe petitioner, which could not otherwise be adjudicated at all, and would therefore be lost if intervention were denied, was presented in the court below in either of tbe petitions which are subjects of the first and third appeals. If the trustee and the receivers act honestly and in good faith, tbe rights of tbe appellant are protected. Tbe trustee has important interests committed to him by his cestuis que trustent in tbe litigation before the court, and tbe court was right; both- as to tbe trustee and the receivers, -in exercising its discretion to protect them from interference in the carrying on of tbe litigation and tbe administration of the funds in hand, as attempted by tbe appellant’s petitions for intervention. If the trustee bad acted in bad faith, or fraudulently, it was open to tbe appellant to proceed by original bill, and, if tbe receivers have been guilty of malfeasance in office, the proper remedy is an application to tbe court below by the appellant or other party in interest for their removal and tbe substitution of others.” 127 Fed. 21, 22.
The views we thus expressed in dismissing the appeals of Spinks (and from which we see no reason to depart) are applicable in full force to the case now before us, and-we think that they are decisive against the present appellant, William C. Bullitt. We might then well end this discussion here. We have, however, attentively examined the grounds of complaint urged by this appellant against the proceedings in the court below, and we are obliged to say that we do not find those complaints, or any of them, to be well founded. The appellant has not disclosed any specific breach of trust by the Band Title & Trust Company, or shown any lack of good -faith on the part of the receiver. The appellant’s principal contention is that certain claims against promoters and former stockholders of the Asphalt Company of America should have been adjusted by way of set-off in the course of distribu
- This record discloses that in due time the court below made appropriate orders authorizing and directing the receiver to proceed by suit to enforce the alleged liabilities of promoters and stockholders of the Asphalt Company of America. On the same day the appellant’s first petition for- intervention was denied the court below made the following order:
“And now, July 6, 1903, the petition and report of Henry Tatnall, receiver of Asphalt Company of America, exhibiting to the court certain facts relat*309 ing to the organization and promotion of said corporation, having been filed and considered by the court, it is ordered and decreed that the receiver be, and he is hereby, authorized afid directed to take such proceedings by action at law, bill in equity, or otherwise as he may . be advised, and as he may determine, against the persons mentioned in said report, or any of them, or against any other persons who may appear to him to be liable, to enforce the liability of such persons for profits made by them in the organization and promotion of Asphalt Company of America.”
When this order was made the court publicly stated that if the petitioner, Bullitt (who was then and there represented), thought that others were liable for promoter’s profits besides those who, in the opinion of the receiver’s counsel, were liable, he was at liberty to use the’ name of the receiver in suits against such persons upon simply indemnifying the receiver against the costs of such suits. It was to this authorization that the judge below referred in the course of his opinion denying the petition of January 8, 1904, when he said:
“It seems to me, in view of the manner in which that decree of July 6th was entered, and the opportunity given to this petitioner especially to come forward and urge the receiver to bring any suit which he might think was legal and proper to be brought, and his failure to do so, that he is not entitled to have that decree opened for any purpose whatever.”
On the’22d of December, 1903, the court made an order for the enforcement of the liability of the stockholders of the Asphalt Company of America, whereby a call was made for payment on each share of stock of said company of the sum necessary to complete the amount of such share, and the receiver was directed to collect the amounts thus called from the stockholders of record. And this order contained the . following further provisions:
“Ordered, adjudged, and decreed that, if the said receiver shall find himself unable to collect from any stockholder of the Asphalt Company of America the full amount payable pursuant to said call by reason of the insolvency of such stockholder, the said receiver be directed to inquire into the circumstances under which transfer of stock was made to such stockholder, and, if he be of opinion that the amount payable pursuant to said call and not collectible from the stockholder of record constitutes a liability of any former holder of such stock, and that it will be to the advantage of the estate in the receiver’s hands for administration to attempt to collect the deficiency from such former stockholder, then and in such case the receiver is hereby directed to employ such legal process and institute such legal proceedings to that end at the expense of the trust estate, with all the powers aforesaid, as he shall be advised by counsel; and it is further ordered, adjudged, and decreed that, if any person interested in the administration of said estate in the hands of the receiver shall file with the receiver a sworn statement in writing of facts purporting to show the liability under said call of any former stockholder of the Asphalt Company of America named in said statement, with a detailed presentation of the evidence available to substantiate said facts, and the names of the witnesses who will prove said facts, and if the receiver, upon consideration thereof, and of such other information in the premises as he can obtain, shall be of opinion that an attempt to enforce such alleged liability by legal proceedings will not be to the advantage of the estate in his hands for administration, he shall give notice in writing of such determination to the person presenting such statement of facts; and thereafter, notwithstanding such determination, if a satisfactory bond of indemnity with sufficient surety or sureties shall be tendered to the said receiver to protect the estate in his hands for administration against any damage or expense by reason of legal proceedings for the enforcement of such alleged liability, the said receiver is hereby directed to employ such legal process and institute such legal pro*310 ceedings at the expense of the trust estate, with all the powers aforesaid, ;as may be advised by counsel for the enforcement of such alleged liability; the court reserving the right, however, at any time by order, after notice to the receiver and to the person furnishing such bond of indemnity, to prohibit the institution of any such proceeding which shall appear to be oppressive in character, or without probable cause, or from time to time- in any case to require additional or other security.”
We do not perceive that the orders of July 6 and December 22, 1903, are open to criticism. They seem to us to scrupulously guard the interests of the appellant.
We do not deem it necessaiy to discuss with particularity all the alleged errors specified by the appellant.' We here content ourselves with saying that we are not able to see that the appellant has any just cause of complaint in respect to the proceedings in the court below.
Each of these appeals must be dismissed.
