Beaver Board Cos. v. Imbrie

HOUGH, Circuit Judge (after stating the facts as above). The petition before us asks relief against receivers, who obtained the property affected without notice or knowledge of any of petitioner’s asserted rights. Such rights are now affirmatively propounded; therefore by every rule of law the burden of proof is strongly on the petitioners. The story told may fairly be called extraordinary, and in proportion as an allegation of fact departs from the usual, the demand for clarity in proof increases. The ultimate fact asserted is that a banker, who received a deposit, of his own motion intended to give the depositor security for the debt created by the deposit, although he had not been asked so to do, and did not intent to communicate to the creditor what he had done. Such a story might well rest primarily on the evidence of the one partner, who spoke the words out of which all this litigation arose. Yet he was not called to testify, and no reason is even suggested for the omission. The very fact of not procuring his evidence produces lack of clarity under the circumstances. But, assuming that the facts above set forth were not only testified to by clerks, but are fully established, we think the court below right in dismissing petition. A supposed or asserted desire on the defendants’ part that a possibly favored depositor should be more secure in his dealings with them than the common herd of customers is not enough; the acts shown must produce a legal result assignable to some legal category. Accordingly ive feel assured that what was said and done amounted to nothing, if it did not create a pledge, a trust, or an equitable lien; and these are the contentions of appellant. There was no pledge, because possession by the pledgee, the vital element of that legal relation, was absent. Casey v. Cavaroc, 96 U. S. [672] 467, 24 L. Ed. 779. It is true that “apparent possession” may remain with the pledgor, but only when such physical holding is “as agent for the pledgee.” Easton v. German Bank, 127 U. S. 532, 8 Sup. Ct. 1297, 32 L. Ed. 210. Of agency there is no proof at all, and Boise v. Talcott, (C. C. A.) 264 Fed. 61, sufficiently shows how difficult is the sustaining of an agreement of pledge, though accompanied by very formal arrangements for making the debtor the agent of the creditor. There was no valid trust created, although it be admitted that the trust relation does not depend upon the use of any particular form of words; that the settlor need not part with possession, and the fact of settlement need not be communicated to the cestui que trust. 'What is necessary, as-all agree, is an explicit, declaration of trust, or circumstances showing beyond reasonable doubt that it was intended to create a trust. We hold it too clear to justify discussion that the words attributed to the partner, not called to verify his own language, do not evidence a trust within the rule. Although arising under a very different state of facts, our discussion of this general subject in Re Interborough Corporation, 288 Fed. 334, covers this case in principle. This renders it unnecessary to consider the effect of the.New York Lien Law, but see In re Fountain (C. C. A.) 282 Fed. 816, 25 A. L. R. 319. There was no equitable lien. This point is also covered by In re Inter-borough, supra. Such liens usually rest upon an antecedent and under-1 lying contract; in the exceptional case they result by implication from an enforceable obligation or duty resting on tire creator of the lien. In every case the right or charge is completed by equity, in pursuance of the maxim that that is deemed done that oughbto be done. Here there was no contract out of which the lien could grow, nor the slightest duty resting on defendants to give to petitioners any charge or lien whatever; therefore no basis for a. lien exists. Further the proof is deficient. Equitable liens demand strict proof of “intention of parties.” Westinghouse v. Brooklyn, etc., Co. (C. C. A.) 263 Fed. 532, approving In re Stiger, 209 Fed. 148, 126 C. C. A. 96. Indeed, the claim of lien fails for substantially the same reason as does the argument for a trust; e. g., Wadd v. Hazelton, 137 N. Y. 215, 33 N. E. 143, 21 L. R. A. 693, 33 Am. St. Rep. 707. Order affirmed, with costs.