Toland's v. George

McPHERSON, Circuit Judge. The question for decision is whether the referee was right in directing the trustee of Jamison Bros, to retain the custody of certain securities that had been pledged by the bankrupt to Edward D. Toland, but had afterwards been returned by Toland to the trustee. This retention was .only to be temporary— until the court should determine whether Toland had lost the right to claim a lien thereon. The ground of his claim was that after he had returned the securities to the trustee he had discovered that he was still exposed to liability in connection with the sale of certain other of the pledged securities, and that he would be entitled to reimbursement from the securities returned in case this liability should be adjudged against him. On the other hand, O. B. George and John S. [33] Latta, the respective owners of the returned securities, set up inter alia a decree of the District Court, affirmed by the Circuit Court of Appeals, adjudging them to be the owners, and asserted diese decrees to be conclusive. The referee directed the trustee to retain the securities, but the District Court reversed the order, holding the decree of this court to be final. The situation is involved, and requires the facts to be stated with some fullness. On May 9, 1911, the date of adjudication in bankruptcy, Jamison Bros. & Co. owed Toland nearly $82,000 and had pledged various securities as collateral for the loan. Soon after-wards Toland sold nearly all of them, realizing enough money to pay his debt and leave a small surplus. Early in June he paid the surplus to the trustee, and delivered to him the remaining securities. Among these were 38 shares of the American News Company and 100 shares of the Easton Electric Company. The bankrupts had wrongfully pledged these securities, of which they were merely the bailees, and in July George claimed to be the rightful owner of the 38 shares, and Latta claimed to be the rightful/owner of the 100 shares. A year later, in July, 1912* the referee sustained their claims, but his decision did not satisfy all the creditors, and on November 15 he certified the question to the District Court for review. On that very day Toland presented a petition to the referee which may be described as the beginning of the dispute now before us. In that petition he averred — the facts hereafter stated are not controverted — that on October 30, two weeks before, he had learned for the first time that the transfer on the back of certain bonds among his collateral was believed to be a forgery. He had sold these bonds for about $12,-000, and as he had guaranteed the suspected transfer he would be obliged to repay this sum, if the suspicion should prove to be well founded. Asking for protection against this contingency, he prayed that the trustee might be ordered to redeliver to him the 38 shares and the 100 shares already referred to. On November 29 the trustee demurred to the petition, and the proceeding remained in that situation for nearly two years. Meanwhile, however, other proceedings that are relevant to the controversy now in hand were going on before other tribunals. In February, 1913, Toland received notice of a suit in the Supreme Court of New York County between two other parties. This suit involved the question of the forgery, and he afterwards became a party by intervention to protect his interest. The Supreme Court decided that he was not liable for the consequences of the forgery (the reasons not being important), and the Appellate Division affirmed the decree. But an appeal was taken to the New York Court of Appeals, and the case has not yet been heard, and we are informed cannot be heard for several months. For this delay the federal tribunals here are in no way responsible, and it cannot be decisive in the present dispute. The situation is this: If the decree already entered in Toland’s favor be affirmed by the highest court of the state, he is altogether relieved from liability and can have no further claim upon the shares in question. But if the New York court should decide against him, and he should be [34] obliged to make good his guaranty to' the extent of $12,000, he will then be compelled to fall back on the similar guaranty of the bankrupts made to him when the bonds were pledged. Whether he can reimburse himself, in whole or in part, out of the 38 shares and the 100 shares, will then be a question of importance to be determined in this jurisdiction. While these events were happening in the courts of New York, let us see what was going on in Pennsylvania. As already stated, the referee’s decision 'that George and Latta were the true owners of the stocks was certified to the District Court with similar questions, and was affirmed by that tribunal on May 26, 1913. An appeal was taken to this court, but the decree below was affirmed in November, 1913, and after a reargument was again affirmed in December of the same year. Re Jamison Bros., 209 Fed. 541, 126 C. C. A. 363. For some reason, nothing more appears to have been done in the bankruptcy court until eight or nine months afterwards, when the parties interested in the ■ securities now in question turned to Toland’s petition of November 15, 1912, which was still pending before the referee. All parties knew of this petition, and of Toland’s claims as. pledgee, and the stocks were still in the hands of the trustee. On October 1, 1914, the trustee’s demurrer was overruled, and a few days later the trustee answered Toland’s petition, and set up the titles of George and Latta. These claimants came in also' with petitions of their own, asking that the trustee might be compelled to deliver the stocks to them, and to these petitions the trustee replied by setting up the claim of Toland. On October 30 the referee, recognizing that the chief dispute was between the owners and the claimant, ordered Toland to become a party defendant to the petitions of George and Latta. This was done; Toland again setting forth the facts in reference to the forgery and the suit in New York, and asking that the trustee retain the securities until the controversy there should be finally decided. On December 1 the referee refused the petitions of George and Latta, and granted the relief asked by Toland, directing the stocks to be retained by the trustee. This decision was certified to the District Court on December 24, and on May 24, 1915, the referee’s order was reversed, Toland’s petition was dismissed; and the trustee was orT dered to deliver the securities to George and Latta respectively. From this decree the present appeal was taken by Toland’s executors. [1] By reference to the opinion of the District Court set out above, it will be observed that the decision is put upon the single ground that the decree of this court, entered in November, 1913, affirming the previous decree of the District Court entered on May 26, had decided that George and Latta were “entitled to the named securities * * * in the hands of the trustee,” and that neither the referee nor tire District Court had. authority to amend or modify what this court had done. We therefore have the dispute below referred to us by what seems to have been in effect a pro forma decree, to which the learned judge regarded himself as constrained. We appreciate the attitude of the court 'below, arid have no doubt that, if the District Judge had felt himself at liberty to consider the question, he would have come -to [35] the conclusion that the decree of this court was not an obstacle in the way of doing what the equities of this unusual situation appear to demand. We see no occasion to modify that decree, in November, 1913, we decided what was then before us, namely, the question who were the owners of these (among other) securities; but we did not decide, and were not asked to decide, whether the title, the right of ownership, was or was not subject to a lien, actual or contingent, in favor of Toland. Obviously a man may be the “owner” of property, although the property may be incumbered to its full value. George and Eatta have been decreed to be the owners of these shares, and that question is settled, so far as the parties to that decree are concerned. But whether the title was burdened with a contingent equity was not involved, either actually or by necessary implication. Toland was not a party, and in any event was not and is not now contesting the title of either owner. He merely asserts a contingent right, whether the securities belonged to the bankrupts or to George and Eatta. No rights of purchasers for value have intervened. The validity of this right should not now be determined. The point may never arise, and we decide no tiring now, except that the trustee should retain the shares for the present, so that Toland may have an opportunity to be heard if the need therefor should arise. [2] It is only necessary to add a few words in reply to one or two positions of the appellees. First, we have no doubt of the jurisdiction below and here. The shares are actually in the custody of the trustee, who holds them in that character. They were apparently the property of the bankrupts, and the District Court was bound to determine who was in fact the owner. Generally speaking, a court of equity has power to determine all questions affecting a fund in course of distribution. We think the court is equally bound to determine whether these shares are subject to Toland’s lien, if he should lose the appeal in New York; for in that event the distribution of the bankrupt’s estate will be affected. If Toland loses, and if his lien is good, George and Eatta will evidently have a claim against the estate that they do not now have; and, if the lien is good, and the shares do not produce $12,000, Toland will have a claim for the balance. [3] Neither has Toland been guilty of laches that estops him from asserting his claim. There is no evidence that the delay — in which all parties seem to have shared — has done harm to George and Eatta, and there is nothing, therefore, to interfere with Toland’s proceeding. Even if he could have intervened in the dispute over the title, his claim would have been restricted to just what it is now, namely, a claim that the trustee should retain the shares. In fact, he did intervene before the appropriate tribunal, the referee, and, as we have already said, all parties were aware of his claim. But we may say that, if for any reason it should seem desirable to sell these shares and substitute the proceeds, we have no doubt an order of sale will be made upon proper application. The decree is reversed, with directions to reinstate the order of the referee. Footnotes [1] <§r^Eor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes