Stone v. Reed

W. Allen, J. The bill alleges that three hundred and twenty-five bonds of the Boston and Lowell Railroad Corporation, of one thousand dollar’s each, came into the hands of the plaintiff, and that sixty-one of them remain in his hands and possession; that the defendant Bartlett has brought a bill in equity against the plaintiff and the Mystic River Corporation to reach and apply these sixty-one bonds upon a debt alleged to be due to him from the corporation; and that the other defendants claim that the bonds are their individual property, and have demanded them of the plaintiff. The bill is defective in not showing any title in the plaintiff to the relief sought. Assuming that, if he held the bonds as a stakeholder, he would have a right to require the defendants to interplead, as in Qobb v. Bice, 130 Mass. 231, the bill must show what his relation to the bonds is, and that it is such as to entitle him to the relief. The only direct allegation in that respect is, “ that said bonds came into the hands of this plaintiff.” This is consistent with a tortious possession, or with a possession as bailee or agent of one of the parties defendant. The absence of a direct allegation of the character of the plaintiff’s possession of the bonds might be cured if there were allegations in the bill which afforded an inference that his possession was that of a stakeholder, or such as to entitle him to maintain a bill of interpleader. Upon reference to the allegations of the bill, it appears that no inference can be drawn from them in regard to the character of the plaintiff’s possession of the bonds, unless one which shows that he has no title to the relief sought. The bill alleges that the Boston and Lowell Railroad Corporation bought of the Mystic River Corporation certain land and flats, and that payment therefor was made by the three hundred [183] and twenty-five bonds referred to; that the plaintiff was the treasurer and one of the directors of the Mystic River Corporation ; and that the bonds came into his hands. The bill further alleges, that, after providing for the admitted indebtedness of the corporation, the bonds were divided among the proprietors or certificate holders, (who were the corporators,) and that the sixty-one bonds referred to remained in the hands and possession of the plaintiff. The only inference which can be drawn from these allegations is, that the bonds were the property of the Mystic River Corporation, and were received as its property by the plaintiff, as its treasurer, and that the sixty-one bonds not divided are held by the plaintiff as treasurer of the corporation, as its property. This inference is not at all affected by the allegations of the bill in respect to the claim to the bonds made by the defendants, the proprietors or certificate holders, or corporators. That claim, as stated in the body of the bill, is substantially this : that in the year 1852 certain owners in severalty of flats made an agreement for the purpose of holding the same in common in certain proportions, and of forming a corporation; that a corporation was accordingly formed, under a special charter, which took possession of the lands and flats of the proprietors, and controlled and managed them as its own property, but that no conveyance was made by the proprietors to it; and that certificates were issued by the corporation to the proprietors showing the proportion of the common property which belonged to each. The claim of the defendants, as stated, is that the proceeds of the sale belong to them individually, because they did not make a formal conveyance to the corporation composed of themselves when it took possession of the flats more than thirty years before. It is obvious that the allegation that the defendant corporators claim a title paramount to that of the corporation cannot affect the allegations, direct or implied, that the sale authorized by the Legislature was of the property of the corporation, that it was sold by the corporation and conveyed by it as its property, and that the bonds were received in payment to the corporation by the plaintiff as its treasurer, as allegations affecting the character in which the plaintiff received and holds the bonds; and it is unnecessary to consider whether the point urged by the defendant Bartlett, that the exhibits contradict the allegations in [184] the body of the bill, and show that the title and interest in the property sold was in the corporation, can be sustained, nor what effect it would have, if sustained, on the demurrer to the bill. It is too plain for argument, that if the bill alleges that the plaintiff holds the bonds as treasurer of the corporation, and that the defendant corporators claim by a title paramount to the corporation, it cannot be maintained. Without deciding other objections to the bill made in argument, we sustain the demurrer, upon the ground that the bill contains no averments in respect to the possession of the plaintiff which show that he is entitled to maintain the bill. Decree affirmed. Memorandum. On the fourth day of September, 1890, Mr. Justice Field was appointed Chief Justice, in place of Chief Justice Morton, resigned, and took his seat upon the bench as such on the ninth day of the same month, at the law term then held at Pittsfield in the County of Berkshire,