First National Bank v. Hartford Life & Annuity Insurance

Pardee, J. This is an amicable submission, upon an agreed statement of facts, to the Superior Court, under the statute, of matters in dispute between the Hartford Life and Annuity Insurance Company, the First National Bank, and the estate of Wareham Griswold, late of Hartford, deceased, represented by his executors; these corporations and persons being all of Hartford. The Superior Court has asked the advice of this court as to what decree shall be passed in the premises. [After making a statement of the principal facts in the case, which is omitted, as the facts have been sufficiently stated, the opinion proceeds as follows:] The statute (Rev. of 1875, page 279, sec. 9,) provides as follows: “ Shares of stock in any corporation organized in this state under the laws of this state or of the United States, may be pledged by executing and delivering a power of attorney for their transfer, with the certificate of stock therein mentioned, to the party to whom the pledge is made; but no such pledge, unless consummated by an actual transfer of the stock to the name of such party, shall be effectual to hold such stock against any person but the pledger, and his executors and administrators, until a copy of such power of attorney shall be filed with the cashier, treasurer, or secretary of said corporation.” By virtue of the pledge by Griswold of the stock here in question to the bank and the delivery of the certificates, with powers of attorney for the transfer thereof to themselves, for the security of his indebtedness, they acquired as against him •an equitable interest in it,- liable however to be defeated by attachment, by levy, by transfer to a trustee in insolvency or to an assignee in bankruptcy, by his death leaving creditors whose debts could -only be paid in full by the proceeds thereof,' ■and by a lien placed thereon by a public statute. The bank had the privilege of changing this possible, contingent equitable interest into a perfected indefeasible lien for the security — 35 — of their debt. They suffered it to pass from them by omitting either to transfer the shares upon the books of tho insurance company to themselves, or to give notice to that company of their lien, until after the enactment of a statute which went into operation on the first day of January, 1875, and which provides that every corporation “ shall at all times have a lien upon all the stock owned by any person therein, for all debts due, to it from him.” Revision of 1875, page 279, sec. 8. Therefore, the bank not having previously made any transfer or given any notice, on that day there came into existence in behalf of the insurance company a statutory mortgage or pledge of the stock to themselves as security for Griswold’s present indebtedness to them; and thereafter, in the absence of any notice from the bank, whenever the company made a loan to him, there simultaneously sprang up a like mortgage for the security thereof; and this without any request upon their part or any agreement upon his. Inasmuch as it is the creation of a public statute, no act upon the part of the insurance company by way of actual notice to any person or corporation was necessary to the perfection of their lien, because the statute requires none, and is itself of course constructive notice to all persons. The legal interest of the company in the shares, thus perfected by the power of a public act, must take precedence of the imperfect, because secret, interest of the bank therein. After this eighth section went into operation whoever purchased stock in any corporation or took it in pledge as security for loans, could not be sure of his legal title as owner or of his equitable interest as pledgee until he had transferred it to himself upon the books of such corporation, or had filed the statutory notice. That statute took -immediate effect upon all corporate shares then existing without regard to the fact that the various corporations had previously issued certificates representing such shares, framed in absolute terms of ownership and containing no notice of any claim for such lien; and it takes like immediate effect upon shares, the certificates for which have been issued since the enactment thereof, without stating therein any claim for such lien; for, the act does not — 36 — require corporations to embody any such notice in their respective certificates as a pre-requisite to the lien, and the court has no power to demand it; and as in contemplation of law evéry person has notice of the privileges conferred and obligations imposed by a public statute, whoever accepts either as purchaser or pledgee of corporate shares must consider the statutory provision for a lien as a constituent part of the certificate which he receives. And so far as it concerns, the hundred and forty-seven shares which were returned to the bank with the new power of attorney, the pledge for Gris-wold’s indebtedness to the company was by force of the statute constructively embodied in the new certificate representing them, as it had been in the .ormer one. By virtue of this' ninth section the pledge to the bank was good as against Griswold and his heirs, without transfer of the shares or notice to the insurance company; and if upon his death these shares were not needed for the payment of debts, as against his heirs a court of equity would have enforced the pledge in favor of the bank. Going beyond this, they urge that the statutory mortgage to the insurance company does not take precedence of the equitable interest acquired by them two years before the passage of the act giving corporations a lien upon their own shares as security for indebtedness to them from the owners thereof. The statute as originally passed in 1871 declared that stock pledged by a delivery of the certificate with a power of attorney to the pledgee should not be “ protected from attachment or levy by any creditor of the owner thereof or from passing to his assignee in bankruptcy or trustee in insolvency until a copy of said power of attorney shall be filed with the cashier, treasurer, or secretary of the corporation.” Session Laws of 1871, page 525. It re-appears in the Revision of 1875, page 279, section 9, declaring that “no such pledge shall be effectual to hold such stock against any person but the pledger and his executors and administrators until,” &c. . The words are changed but the meaning remains. The pledge by Griswold to the bank was in 1872; after the enactment of the ninth section in 1871 it became impossible — 37 — for the bank to acquire any vested interest in the stock as against creditors, present or future, except by a notice. The statute expressly preserves creditors’ rights. If Griswold had gone into bankruptcy all debts would have shared equally in the proceeds of the stock. The statute reserved to the insurance company the right to take precedence of the bank by an attachment for the security of their debt, irrespective of the question as to when it was contracted. The bank acquired and held their interest in the stock under a statute which exposed it to all modes of attack from creditors, so long as it rested upon a secret pledge; they took that interest upon a statutory declaration that it should not become vested as against any creditor until they had filed a notice; and the act of 1875 is the exercise by the legislature of power reserved to itself in the act of 1871, and only added to attachment, levy, and assignment to trustees in insolvency, one more door of access to the stock; not a new right, but simply an additional method for enforcing one already in existence. The insurance company, seeing that no one had secured any vested interest in the stock on the first day of January, 1875, by giving the statutory notice, from that day onward had the right to refrain from obtaining other security either by pledge or attachment and to rest solely upon what the statute had done for them; presumably they did so; on that day they could have attached; practically the statute placed an attachment upon-the stock in their behalf; it publicly recorded a completed lien for their security, and that would have been the precise effect of an attachment; the equity of the bank reached no farther than the person of Griswold. Conceding that the bank took a power of attorney coupled with such an interest as the lender of money has in securities thus pledged, and conceding the fullest effect otherwise to be claimed for that power in a court of equity, yet our statute declares that it shall not stand before debts present or future unless a notice is filed; and the statute gives no protection except at the price of full compliance with its requirements. There being no notice, the sole security to the bank rested upon Griswold’s solvency; virtually, nothing was — 38 — added to his name. The equitable interest of the bank stands postponed to the publicly recorded lien in favor of the insurance company, by the principle which postpones an unperfected to a completed attachment, or a secret unrecorded mortgage of land to one which although later in time is recorded by a grantee who has no notice of the first. . But if this position is untenable we should be compelled to advise the Superior Court that the stock must go unencumbered into the mass of the estate for the equal benefit of all creditors. The bank, the insurance company and the executors have signed the articles of submission and are parties of record; all other creditors are parties in the person of the executors; for in the case of an insolvent estate there is no heritable interest; they represent, really, creditors alone. Upon Griswold’s death the law laid its hands upon his estate; he dying insolvent the debts then due stood practically, so far forth as the secret interest of the bank is concerned, as if, living, the law had placed his estate in the hands of a trustee in insolvency; their precedence was made by the statute to depend upon a' notice; in the absence of that, whenever, living, his estate goes to a trustee in insolvency, or, dying insolvent, it goes to his executor, the statute reduces the bank to the level of unsecured creditors. To repeat what we have already said, whatever at common law might have been the extent of the right conferred upon the bank as lenders of money upon this manner of pledge, the statute, so far forth as other creditors are concerned, limits it to the duration of Griswold’s solvency. Griswold having died insolvent his executors proceeded in accordance with the statutory provisions concerning insolvent estates; commissioners were appointed by the probate court to receive the claims of creditors, to determine the amount, if anything, due upon each, and to report to that court a list thereof, specifying particularly those which they allowed and those which they disallowed; and if any creditor having any security for his.claim upon any property of the estate, should present that claim for allowance, it is made their duty to enquire into, determine, and report the cash- value of such security. — 39 — The bank presented their claim to the commissioners, and added the statement that they had by way of security therefor a lien upon the three hundred and ninety-seven shares of stock in the insurance company; that company presented their claim but were silent as to any lien upon the same stock. The commissioners determined the amount due from the estate to these parties respectively and reported the same to the probate court; reporting likewise the value to the bank of the insurance shares as security for their debt. The court accepted the report; no appeal has been taken from it, and the statutory time for taking an appeal has passed. The bank now urges that the finding of the commissioners and acceptance of their report by the court is a conclusive judgment upon the estate, the bank, the insurance company, and all other creditors, as parties before that court, not only as to the amount of their respective claims, but as to which has the prior lien upon the insurance shares. This, we think, is to attribute to the commissioners powers with which they are not vested. They are a statutory tribunal, brought into existence for the single and special purpose of determining and reporting to the probate court how much, if anything, is due to each claimant, and thereby finding the aggregate of debts due from the estate; they cease to exist when this duty is performed. The issue, so far as there can be said to be an issue before a tribunal when there are no pleadings, and in a strict sense no parties, is between the estate on the one hand and the body of creditors on the other ; the determination of the commissioners as to what the estate owes upon any claim presented is final, if unappealed from; their determination that a particular debt is due to A and not to B is not conclusive as between them; if the commissioners report that the debt is the property of A and the executor pays to him the percentage due thereon, the estate is protected from any further proceedings on the part of either of them; but if B can thereafter show, either in a court of equity or a court of law having general jurisdiction, that the money received by A was due to himself, the finding of the commissioners will not protect A; they are not clothed with power — 40 — to make a conclusive adjudication of B’s right to receive the money. Again, if Griswold had executed his promissory note for $1,000, and A had presented it to the commissioners as a claim in his favor, and B had likewise presented a claim founded upon the same note, declaring it to be liis property and that A had unlawfully possessed himself of it, and the commissioners had heard them and had reported to the probate court that the estate owed $900 upon the note to A, and no appeal had been taken from the decree accepting the report, and the executors had paid the percentage to A, while the decree would afford perfect protection to the executor in making the payment, it would not bar B from thereafter proving in a court of general jurisdiction, upon a proper proceeding, that the debt was his property and recovering from A the amount received by him. But B is concluded as to the amount, and although in his proceeding against A he should pi’ove that the estate owed $1,000 upon the note, he can recover no more from A than the latter received. And the issue before the commissioners upon the estate of a living insolvent is confined to the determination of the amount of indebtedness to be paid to each claimant under the trusteeship then existing; if under that A presents a claim for $1,000 and the commissioners report only $500 to be due thereon, and he receives his percentage from the trustee upon that sum; and if at some future time the insolvent becomes possessed of property, A is not concluded by the report of the commissioners as to the amount' of his debt, and if in a proper legal proceeding against the debtor he can prove that the debt amounted to $1,000, he can recover the unpaid portion of that sum. Again, if the bank and the insurance company had each presented to the commissioners the whole of their ♦respective claims against Griswold’s estate, together with their several claims to a first lien upon the insurance stock, and had been heard, and the commissioners had decided the amount of the debt due to each, and had reported that the right to the benefit of the security belonged to the bank, and no appeal had been taken from the decree of the probate . court affirming this report, as between the bank an(l the — 41 — insurance company the whole question as to which is entitled to the first lien upon the stock is as open as before. The bank and the insurance company were each compelled to present their respective claims to the commissioners if they desired to receive a percentage above the proceeds of such securities as they might respectively hold; the allowance or disallowance of these claims of indebtedness was the issue to be determined; the application of collateral securities was merely incident to the main question; and as an accepted report from commissioners makes conclusive determinations only for the benefit of the estate and for the guidance of the executor or trustee thereof as to the payment of percentages upon proven debts and the valuation and application of pledged property, when the bank presented to this special tribunal of limited jurisdiction an unfounded claim upon the stock as security for their debt, the insurance company could ask the same tribunal to recognize their lien upon the stock, without conferring upon it the power, not otherwise possessed, of finally concluding them, as between themselves and the bank, upon that matter. Nothing is conclusively decided beyond what is necessary to effect the sole purpose of the proceeding, that is, the final settlement of the estate of a deceased insolvent, so far as the estate itself is concerned. To accomplish that it is only necessary to know the amount of its indebtedness and to certify to the executor the names of persons or corporations to whom he can safely pay percentages upon the debts allowed; it is not at all necessary to that end that it should be conclusively determined as between the bank and the insurance company that one or the other had the superior claim to the security; for the estate has not the slightest interest in that question; it owes to each more than the value of it; it cannot be helped or harmed by any result which may be reached concerning it; it owes no more, no less, either to the bank or to the insurance company; and the report made by this special tribunal should not conclusively adjudicate a matter which is neither necessary nor pertinent to the issue before it. If we turn to the statutes creating commissioners we find — 42 — that it is their duty “to receive and decide upon the claims of creditors1 of such estate;” to “report to the court a list of the claims exhibited to them, specifying particularly those allowed and those disallowed;” and if any creditor has security for his claim they are to “enquire into the cash value of such security;” these are the terms of the limited commission issued tó them by the legislature. We are reminded that the decree of a court of probate in a matter within its jurisdiction is as conclusive upon the parties as the judgment or decree of any other court; but, as the determination of the commissioners is only conclusive as to the amount of a debt and as to the person to whom the executor can safely pay a percentage thereon, and this for the benefit of the estate, the passage of the decree by the court only confirms the conclusiveness to the same extent and for the same purpose. In Loomis v. Laton, 32 Conn., 550, land was mortgaged, first, to secure a note for $2,000 to A; second, to secure a debt t.o B; the mortgagor died and his estate was represented insolvent; the first mortgagee presented his claim for principal and interest to the commissioners; the administrator and the second mortgagee appeared and objected to the allowance of any interest on the ground of usury, and the commissioners allowed only the principal, rejecting the claim for interest. Subsequently, upon a proceeding for a foreclosure, the first mortgagee found entrance to a court of general jurisdiction, and it was held that the judgment of the commissioners was not conclusive upon him in that court upon the question of usury, and that he was entitled to interest; and he was allowed to take a decree of foreclosure for unpaid interest. The court says:> “The fact that the respondent was present and assisted the administrator in making a defence can make no difference. He was not a party to that proceeding; and the allowance or disallowance of a claim by the commissioners could only affect the property in the hands of the administrator.” And this view of the law is further illustrated and enforced in a discriminating note by the reporter. And if, under certain circumstances, the finding of the — 43 — commissioners is not absolutely final and conclusive even as to the amount of a debt and as against the creditor who presents it, much less should their determination be always and everywhere conclusive upon the collateral and incidental question as to who has the best claim to a given security. A few days after the death of Griswold, upon the request of H. A. Whitman, one of the executors, the bank delivered to him the certificate for two hundred and ninety-six shares of the insurance stock, and consented that he should transfer one hundred and forty-nine shares thereof to certain persons for whom Griswold had held the same in trust; the insurance company permitted him to make the transfer upon their books, and issued a new certificate for the remaining hundred and forty-seven shares in the name of the estate' of Griswold, which certificate Whitman delivered to the bank with his power of attorney as executor to transfer to themselves; and he also transferred twenty-two shares of Providence screw stock to them. The insurance company also permitted Whitman as executor to make several transfers of shares of their stock which stood in Griswold’s name and were not pledged to the bank, upon Whitman’s declaration that Griswold was not the owner thereof, but held them only in trust. On the 17th day of January, 1876, the bank delivered to the insurance company copies of all the powers of attorney, and asked leave to transfer the shares to themselves in pursuance thereof; the company refused to permit the bank to make the transfer, but remained silent concerning any claim to a lien thereon in their own behalf. The bank insists that the insurance company, by their failure to assert their claim of lien when they refused permission to the bank to transfer the shares, when the executor made transfers, when they issued new certificates in the name óf the estate for a part thereof, and when they presented their debt to the commissioners with a list of securities therefor, omitting any mention of their claim of lien upon these shares, by neglecting to oppose before the commissioners the claim made by the bank to a lien upon them and by neglecting to take an appeal from their action in reporting the value of the — 44 — shares as a security applicable to the debt of the bank, have waived in favor of the bank all right to the lien now asserted by them. A waiver is the intentional relinquishment of a known right. Intent is an operation of the mind and is to be proven and found as a fact, rarely or never to be inferred as a matter of law. The finding being silent as to the existence of such intent, it is not within the power of this court to find it as an additional fact and impute it to the insurance company. Upon these principles, the executors will be protected in making the application'of the ascertained value of the stock upon the debt of the bank, and in paying to them the general percentage upon the remainder; and in paying to the insurance company the percentage upon their entire debt. But, inasmuch as by our determination of the question submitted to us, as between these parties the insurance company are found to have the first lien upon the stoek and are entitled'to have the value thereof applied upon their debt and to receive a percentage upon the remainder only, the executors should transfer the three hundred and ninety-seven shares of the stock to the insurance company, and the latter should pay over to the bank the percentage paid to them by the executors upon the sum of $31,760, that being the value of the stock as ascertained by the commissioners. We advise the Superior Court that the Hartford Life and Annuity Insurance Company has the first lien upon the stock in question. In this opinion the other judges concurred; except Loomis, J., who did not sit.