91 Tex. 605 | Tex. | 1898
Lead Opinion
The Dallas Consolidated Street Railway Company, incorporated under the laws of Texas, conveyed all its property by trust deed, bearing date July 1, 1887, but not really executed, according to the report of the special master hereinafter referred to, until the latter part of July or first of August, 1887, to the Farmers’ Loan and Trust Co., of New York, trustee, to secure its bonds amounting to $250,000, which instrument will be hereinafter referred to as the first mortgage. Subsequently the property of said Company was acquired by the Dallas Consolidated Traction Railway Company, incorporated under the laws of Texas, subject to said mortgage, and this latter Company, on August 1, 1890, conveyed all its property, including the above, to the Fidelity Insurance Trust and Safe Deposit Company of Philadelphia, trustee, to secure its bonds amounting to $750,000, which instrument was expressly made subject to said first mortgage and will be hereinafter referred to as the second mortgage. Defaults having occurred under both, the trustee in the second mortgage, on October 15, 1892, filed its petition in the District Court of Dallas County, Texas, seeking a foreclosure of the lien of said second mortgage and the appointment of a receiver, and said court, on October 17, 1892, appointed a receiver as prayed for, who qualified and operated the property from the date of his appointment until Juné 20, 1895, when he turned it over to the purchaser at the sale under the first mortgage, the trustee therein having intervened September 19, 1894, and secured a decree foreclosing same, and the property having been sold under such degree for $190,000 and such sale having been confirmed by the court May 8, 1895. The receiver from time to time reported to the court the various sums of money received and paid out by him and no question is made as to the correctness of his accounts. In other words it was not contended that he had failed to report any sum received or that any disbursement made by him during the administration of the trust was not authorized by law as far as he was concerned.
The court thereupon referred the receiver’s reports to its Special Master in order to determine whether there were any “earnings” and if so bow much, and to what extent and for whose benefit they had been diverted.
The Special Master by deducting what he considered operating expenses from the earnings of the property found that the net earnings during the receivership amounted to................ §31,909.61
He also found that the following other sums had come into the receiver’s hand:
Proceeds of sales of old material, etc............ 2,881.78
Proceeds insurance policies.................... 27,490.01
Proceeds of unpaid receiver’s certificates........ 11,500.00
Total.......................... §73,781.35
Since none of these funds were used by the receiver in the payment of what the Special Master considered operating expenses, he was of opinion that they were trust funds in the receiver’s hands for the benefit of the persons entitled thereto, and that “if this money was paid out by the receiver either to or for the benefit of the mortgage creditors, then the amount thereof should, upon a final distribution among the mortgage creditors of the proceeds of the foreclosure sale of the mortgaged property, be first deducted from the proceeds of sale and paid over to the parties for whom it was so held in trust by the receiver.” He then found that “§70,789.46 of said sum of §73,781.35 held in trust by the receiver * * * was paid out by the receiver to or for the benefit of the mortgage creditors as follows:
“For the benefit of mortgage creditors.
On property bought prior to receivership........ § 3,245.18
On property bought during receivership.......... 17,137.42
*610 On permanent improvements...................$ 7,070.10
On taxes.................................... 12,897.73
On insurance premiums........................ 5,343.27
To mortgage creditors.
Interest on first mortgage bonds................ 23,140.00
To present owners of .property who represent first mortgage creditors.......................... 1,915.76
Deposited with the city and afterwards collected by said present owners...................... 40.00
Total...................................... $70,789.46”
He then found that this $70,789.46 should be paid from the proceeds of the sale, to the following parties:
Holders of said receiver’s certificates............ $11,500.00
Parties entitled to said 1 'proceeds of insurance policies .................................i____ 27,490.01
To reimburse the earnings fund for the benefit of the creditors mentioned in the statute above quoted.................................... 28,917.72
Total..................................... $70,789.46
This last finding is based upon the further fact found by him that the disbursements above referred to as having been made by the receiver, together with another of $2291.89 made in payment of old'claims, exhausted all the monies which came into his hands, and left nothing to be applied to the settlement of the three last mentioned claims except such monies, if any, as should be refunded from the proceeds of the sale. He further found, (1) that from the proceeds of the sale said $11,500 receiver’s certificates had been paid, and that thereby same were satisfied, as they should have been, out of the corpus of the property; (2) that said $27,490.01 insurance money belonged partly to each of said mortgagees, stating their respective interests therein; and (3) that the following amounts should be allowed as a credit upon said $28,917.72, viz: $7267.76, $532.60 and $681.43 paid from proceeds of foreclosure sale upon various claims entitled to payment out of the earnings in preference to those included within said statute, the claims so paid being expenses of the receivership which had not been previously discharged under the head of "operating expenses” aforesaid. This reduced said $28,917.72 to $20,435.93, which'amount the Special Master finally advised the court to require the mortgagees to restore to the "earnings” fund, out of the proceeds of sale for the benefit of the creditors mentioned in said statute. The purchaser at said foreclosure sale, having made himself a party, and the trustees, filed various exceptions to the Special Master’s report which are made the basis of the assignments hereinafter considered. Said report and exceptions coming on for hearing, the claimants under the second mortgage waived their right to any interest in said
The Court of Civil Appeals held that the earnings fund was properly chargeable with the following items paid by the receiver as aforesaid: $23,140 interest on first mortgage bonds, $8336.49 being that portion of the $12,897.73 taxes which accrued during the receivership, and the $5343.27 insurance premiums; and, since these items amount to more than the $19,586.23 finally found by the court below to be due such fund, they held that the trial court erred in holding that there were any net earnings, and therefore reversed and rendered the judgment in favor of appellants. Randolph and others, creditors of the class mentioned in said statute, have brought the case to this court by writ of error, complaining of said holdings of the Court of Civil Appeals. Thus we have the questions of law presented, as to whether such items, as well as others, were by the Special Master and trial court, in their findings aforesaid, properly held not chargeable against the earnings fund, in the final adjustment of the claims of the creditors mentioned in said statute upon said fund and of the mortgagees upon the corpus.
It is clear from the report that the $19,586.23 found as aforesaid to be still due the earnings fund was included in the $70,789.46 found by the Special Master to have been expended by the receiver “to or for the benefit of the mortgage creditors,” for without that sum he would not have had the means to have made all such expenditures. Therefore if none of the things for which such expenditures were made were proper charges upon the earnings, as between the creditors mentioned in said statute and the mortgagees, then it would seem to be clear that there were earnings to the amount of said $19,586.23 which have been diverted from the earnings fund to and for the benefit of the mortgagees.
As to the $3245.18 paid to discharge liens “on property bought prior to receivership,” the $17,137.42 paid “on property bought during receivership,” and the $7070.10 paid “on permanent improvements,” it is clear that they cannot be held legal charges against the earnings fund as between the parties to this controversy, for they are in no sense operating expenses, and that such payments were for the benefit of the mortgagees, since the Special Master found that all such property and improvements were sold and passed to the purchaser under the foreclosure,
The $12,897.73 paid “on taxes” consists of taxes accrued before the granting of the receivership, taxes accruing during the receivership, and of certain sums due the city of Dallas as a franchise tax. The first two are fixed by law as a first lien on the corpus of the property, but not irpon the earnings. If the State, county and city to whom they were due had intervened in this suit seeking their collection by foreclosure of 'their liens, as did the mortgagees and the creditors mentioned in said statute, the decree must have been that the corpus of the property be sold, and the proceeds applied, first, to the payment of such taxes, and, second, to the satisfaction of the mortgages, and that the earnings be applied to the claims of the creditors mentioned in said statute as having a lien thereon. It follows that such taxes were not a charge against the earnings as between the parties hereto, and that if the court in the administration of the receivership caused the earnings upon which by virtue of the statute the creditors mentioned therein had a lien, to be paid in discharge of the first lien upon the corpus of the property, it was its duty in finally adjusting the equities of all the parties to cause to be restored to the earnings from the corpus the amount so diverted. If under the arrangement between the City of Dallas and the street car company the franchise tax was secured by first lien on the property, or probably if its prompt payment was necessary to the preservation of the company’s easement in the streets, the same reasoning would seem to apply to it. The nature of the arrangement between the city and the company in reference thereto is not disclosed by the record, and therefore in deference to the findings of the master, that this payment was for the benefit of the first mortgage creditors, and was not a charge against the earnings,■ and the judgment of the trial court approving same, and we must assume that the facts were such as to justify such finding.
It will be observed from the Special Master’s report that he allowed the mortgagees the $27,490.01 proceeds of insurance policies, as representing the property destroyed, and charged them with the $5343.37 paid out by the receiver for insurance premiums on these and other policies, or in other words held that such premiums were not charges against the earnings. Some of the creditors mentioned in said statute contend that the $27,490.01 should be classed as earnings, since the insurance was effected by the receiver and premiums paid out of the earnings, and the mortgage creditors were in no way interested in the contracts. On the other hand the mortgagees contend that it was the duty of the receiver to insure the property and to pay premiums out of the earnings, and that they should be allowed the proceeds of the policies as representing the property destroyed, but the premiums should be charged against the earnings and not against the corpus. Where a mortgagor or mortgagee insures the mortgaged property for his own benefit, he, having an insurable interest, is entitled to the proceeds of
It is shown by the record that the court, upon application of the trustee in the second mortgage and of the receiver, ordered the receiver from time to time to pay the interest on the bonds secured by the first mortgage in order to prevent their being declared due for non-payment thereof and foreclosed, and that said $23,140 “interest on first mortgage bonds” was paid by the receiver under such orders. It is earnestly contended by the trustee in the first mortgage and the purchaser representing said bondholders, that, since the receivership was not granted upon their application, and since said payments of interest were made in order to prevent the maturity and foreclosure of their debt, and since they have not by their intervention asked any extraordinary equitable relief, but simply ask the enforcement of their strict contract rights., a court of equity will not raise any equities in favor of the creditors mentioned in the said statute by reason of the fact that such interest was paid in whole or in part out of the earnings, and that, therefore, this is not a case for the application of the doctrine of “diversion and restitution” announced in Fosdick v. Schall, 99 U. S., 235, and other cases based thereon. We understand the Court of Civil Appeals to have substantially sustained this contention. The answer to this is that the credi
It is not contended that the remaining items of $1915.76 and $40 could be charged against the earnings, as they were turned over to the purchaser by the receiver.
. It follows that we are of opinion that none of the sums constituting said $70,789.86 found by the Special Master to have been “paid out by the receiver to or for the benefit of the mortgage creditors” were proper charges upon the earnings as between the parties to this controversy, and that, since said $19,586.23 found by the court as balance of net earnings was included in such expenditures, it was properly fixed as a lien on the corpus unless the purchaser is entitled to some further credit thereon by reason of the claims we will now proceed to examine.
It is earnestly contended by the mortgagees and purchaser that said $11,500 receiver’s certificates which have been paid out of the proceeds of the sale should be allowed as a credit on said $19,586.23. This would doubtless be true were it not for the fact found by the Special Master, which we cannot say as a matter of law was without evidence, that the proceeds of the sale of such certificates were included in said $70,789.46 paid by the receiver to or for the benefit of the mortgage
Being of opinion that the Special Master Richard Morgan’s report finding net earnings to the credit of the statutory creditors was correct, and that the trial court did not err in confirming same, we must set aside the judgment of the Court of Civil Appeals and affirm the judgment of the trial court, which is accordingly done.
Judgment of Court of Civil Appeals reversed.
Judgment of District Court affirmed.
Rehearing
ON MOTION FOR REHEARING.
In overruling the motion for rehearing we deem it proper to state that the three items which the Master, found should be paid from the proceeds of the sale do not amount to 870,789.46 as shown by the extract from his report as given in our opinion. In order to make such amount the item of $28,917.72 should be $2881.73 greater. It may be that, in making up the transcript, some item of $2881.73 was omitted in copying the report. If not, this mistake was advantageous to plaintiffs in error and no one has made any complaint thereof.
Motion overruled.
