Nashua Savings Bank v. Abbott

Barker, J. The right to a seat in the exchange had a pecuniary value, could be transferred under restrictions, and upon the member’s death could be disposed of by a committee by sale, the price after extinguishing the claims of other members going to the legal representatives of the deceased. These characteristics make such rights property, and they are so recognized and dealt with. Fish v. Fiske, 154 Mass. 302. Currier v. Studley, 159 Mass. 17. See Hyde v. Woods, 94 U. S. 523; Powell v. Waldron, 89 N. Y. 328; People v. Feitner, 167 N. Y. 1; Barclay v. Smith, 107 Ill. 349. The assignment of October 6, 1883, was in terms a pledge of this property to the plaintiff, and being upon a valuable consideration gave the plaintiff a lien. As the property was not susceptible of delivery the instrument need not be recorded, Marsh v. Woodbury, 1 Met. 436, and the lien could be enforced without a foreclosure as of a mortgage of personalty. Taft v. Church, 162 Mass. 527, 532. McKie v. Gregory, 175 Mass. 505. See also Richardson v. White, 167 Mass. 58. We are of opinion that it was not intended to give the plaintiff a lien for all possible future indebtedness. We do not give that meaning to the words “ This assignment . . . shall remain in full force until all indebtedness of said Allen S. Weeks to said Bank shall have been paid.” When delivered it was security for the payment of a loan of $4,500 then made. On November [536] 1, 1894, this loan being unpaid and the assignment still in the possession of the plaintiff, a note of that date for $5,000 was given in renewal of the $4,500 loan and of another loan of $500, and upon that note, which was a joint and several note of both of the makers of the assignment and signed by both was this written statement: “Collateral Security. One membership (or seat) of the Boston Stock Exchange.” The intention was to continue the lien for the payment of this $5,000 note, and the writing was sufficient for that purpose. The note of $2,000 was dated May 31, 1890, and was in renewal of part of a note of $2,300 dated December 1, 1884. Neither of these notes mentioned the assignment of October 6, 1883, and there is no writing signed by Weeks which makes it clear that the parties intended the lien to apply to either of these notes. We are of opinion that the $2,000 never has been secured by the lien. This lien for the debt represented by the $5,000 note was in force on August 8, 1897, when the defendant’s intestate died. Administration upon his estate was granted August 19, 1897. Thereafter the assignment was presented both to the officers of the exchange and to the defendant, and the claim was made that the plaintiff was entitled under it to be secured for its indebtedness. The seat was sold with notice of this claim and a large sum was paid over by the exchange to the defendant, who took it with like notice. This change of the property into money, in accordance with rights existing when the lien was created, was like the conversion of mortgaged land into money by a foreclosure sale and the lien subsisted and held the proceeds of the sale. Western Union Telegraph Co. v. Caldwell, 141 Mass. 489, 492, 493. As the defendant received the money with notice of the lien and has of it in his hands more than enough to extinguish the debt for which the lien is security, the plaintiff is entitled to a decree unless the lien has been extinguished or the plaintiff’s right to its enforcement lost since November 7, 1897, when the money was paid to the defendant. One contention is that this suit is barred by the short statute of limitations. That statute applies to actions by a creditor of the deceased. Pub. Sts. c. 136, § 9. R. L. c. 141, § 9. The [537] right of the plaintiff to bring suit upon the note or to prove it as a debt of the defendant’s intestate before the commissioners appointed when the defendant represented that estate insolvent is barred by the statutes cited. But the debt and the lien both exist, and this suit is not an action by a creditor to collect his debt, but a suit by an equitable owner to enforce his title. If the money had been received by the defendant’s intestate, as in Western Union Telegraph Co. v. Caldwell, ubi supra, the short statute of limitations would have applied. It was not so received, but was paid to the defendant after his appointment and with notice of the lien. By mingling with the funds of his intestate’s estate money to which the plaintiff had an equitable title and which the defendant took with notice of that title, the defendant could neither divest that title nor gain the right to a defence which protects him from the suits of creditors of his intestate. The statute does not protect an administrator in converting to the use of the estate of his intestate the property of another, and is no defence to him against an action to enforce the equitable ownership of another in money which the administrator has received from a sale by the committee of the right of his intestate to a seat in the board, and which the administrator took charged with a lien and having notice of the lien. See Thayer v. Mann, 19 Pick. 535; Cunningham v. Davis, 175 Mass. 213, 221. Nor has the plaintiff lost its right to enforce its lien by loches. The record shows that it gave prompt notice to the defendant both of its debt and of its claim of this lien as security. While no action was brought within the two years during that period the plaintiff was insisting upon its debt. Upon the appointment of commissioners an effort was made to prove the debt before them, and thereafter the plaintiff attempted to collect it by a suit in equity. The only ground for contending that the plaintiff has been guilty of loches is the fact that in Powow River National Bank v. Abbott, 179 Mass. 336, certain creditors who like the plaintiff relying on the defendant’s representations did not sue him within two years have been adjudged to have been chargeable with culpable neglect within the meaning of Pub. Sts. c. 136, § 10. But although originally joined as a plaintiff in that suit this plaintiff had ceased to be a party to it before [538] the judgment. Nor will the circumstances which bar a recovery-under that statute, necessarily support a plea of loches in other proceedings in equity, not brought by creditors of the estate as creditors, but brought like the present suit by an equitable owner of property to enforce his ownership. The question must we think be decided with reference to the usual rules governing the defence of loches, and this defence is not sustained. There is a finding in the report that as to what took place before the commissioners the plaintiff had not waived its security. We are of opinion that the plaintiff has not lost or waived its right to enforce its lien either by what took place before the commissioners or by its course in joining in the bill in equity under Pub. Sts. c. 136, § 10, brought after the disallowance of its claims by the commissioners. Neither the defendant nor any creditor of the estate other than the plaintiff has been prejudiced by the action of the plaintiff in either of those matters. The whole claim of the plaintiff was disallowed, and it has neither received or been adjudged entitled to receive any payment out of the estate. The oral assent of the plaintiff to the defendant’s statement to the commissioners that he considered the assignment ineffectual and would not recognize it and that the plaintiff had been so advised by the secretary of the exchange, was made in good faith and has harmed no one. An unsuccessful attempt to prove as unsecured a secured claim, in the absence of any written waiver, ought not to extinguish the security, no one having been harmed by the attempt. The defendant’s contention founded on the equity, jurisdiction of the Probate Court is unsound. The probate and the equity jurisdictions of that court are distinct and its equity jurisdiction is a concurrent one only. Resorting to the probate jurisdiction to prove a claim against the estate of a deceased person, is" not an election to choose the equity side of the same court to enforce an equitable ownership to money in the hands of the administrator of the estate against which the claim is offered. The remaining contention is founded upon the release of the joint makers of the note, and'the plaintiff’s assent to the disposition of the -$5,000 gratuity a part of which only was applied to the note. The gratuity under the rules of the exchange was not a right, but merely a gift from the other members to the widow. [539] of the deceased member. Whether or not the defendant could complain of the release of a co-maker who was as to his intestate only a surety if there had been no reservation in the release, there was such a reservation of the plaintiff’s rights as against all others. Sohier v. Loring, 6 Cush. 537. Kenworthy v. Sawyer, 125 Mass. 28. Beacon Trust Co. v. Robbins, 173 Mass. 261, 271. Decree for plaintiff in the sum of $1¡.,65I¡..26, with interest from January 23,1899, and for costs.