Sahlgaard v. Kennedy

13 F. 242, 4 McCrary's Cir. Ct. Rpts 133

Opinion

Treat, D. J.

These three cases have been heard at the same time, by agreement of counsel, because a large portion of the evidence is common to each.. Many of the questions involved have been before this court in some form or another, especially in the Wetmore Case, 5 Dill. 531, so that, practically, little remains for present decision except the force of the evidence submitted on the issues joined. It is not purposed to go into a statement of the cases at length, nor to analyze the evidence, review the authorities cited, or state specifically what has been authoritatively decided heretofore in the progress of this litigation. The record and all matters pertaining to the progress and ultimate decision of these cases will unquestionably undergo review by the supreme court of the United States, so that if any errors are now or have been heretofore committed, the losing party will have ample redress. As to the Sahlgaard Case, there are two questions not involved in the other suits. The evidence discloses that he is not the sole owner of the bonds on which his suit is based, and that if his co-owners had been made co-plaintiffs, as they should have been, this court would have had no jurisdiction. It is urged that as the bonds are payable to bearer, and he happens to have the manual possession, therefore he has a right in equity to institute and pursue this litigation without disclosing that he is only one of many joint owners, and despite his own testimony that others than himself are such joint owners. It must be borne in mind that this is a suit in equity in which the real parties in interest must appear, especially as they are seeking to invalidate judical decrees in another forum, and to go behind those decrees to the extent, at least, of charging a trust upon the defendant railroad to the extent of bonds held by plaintiff, as if by a lien therefor. While it may be that the holder of negotiable securities can at law maintain a suit in his own name, excluding equities under given circumstances, yet when joint parties seek to upset judicial decrees, charge trusts, and fasten supposed liens in consequence of joint interests, all of them should be before the court, in order that it may be known to what extent and in whose favor a decree may be had. If the bonds in question are to be decreed a lien on the property of the defendant, it must be done for the benefit of the owners of the bonds—for those who have an equitable right thereto, and who are to be bound by the result of the litigation. If a decree should be given against this plaintiff, and he immediately thereafter shifts the manual possession to one of his co-owners, can the latter institute a new suit and avoid a plea.of res adjudicata? The rule is deemed clear and explicit that this plaintiff cannot maintain a suit of this nature in his own name, he being only one of several joint owners of the bonds in question, those holding a majority interest being citizens of this state. On that ground alone, if there were no others, his suit would have to be dismissed.

There is a second question, upon which it is not deemed necessary to give a definite opinion, viz., whether his appearance in the state court, under the circumstances in evidence, does not conclude him. He appeared there, requesting to be admitted a party, on the ground that the trustees of the bondholders were not faithful to their trust. Having sought the interposition of that court, and that court having passed on his demand adversely, and he having chosen to abide thereby, to what extent can he reopen that judgment, except possibly for actual fraud since discovered ? If, in a direct proceeding to inval idate the decree of the state court, he can show that it was obtained, by actual fraud, he has a right to be heard; but it might be that if' full opportunity had been had to pursue his supposed rights before that court for whose aid he had applied, with a full knowledge of all the facts now presented, he would be held estopped. It is not necessary, however, to decide that point. It must suffice to refer to the many cases in which it is intimated that courts should judiciously refrain from interfering with the decrees of other courts, except when such interference or impeachment is plainly necessary.

There is a common ground of complaint' in all of these eases, on which, independent of technical considerations, they would necessarily rest. It is charged that the decrees and decretal orders in the state court were fraudulent. This court has read with scrupulous care all the evidence before it, in the light of the undisputed rule that fraud must be proved and cannot be presumed,—that is, actual fraud. There were many suspicious circumstances which called for explanation, apd which, as Justice Miller says, are not to be viewed in the light of after events for a correct interpretation. All the facts and circumstances, must be considered as they existed with respect to the property involved at the time action was had with regard thereto. It is not uncommon that men embark in enterprises which promise great gain, and are ruined thereby; and, on the other hand, men invest in doubtful enterprises, and win eminent success. The latter seems to have been the case in hand. The fore closure suits had been longpending. Allparties concernedknew that, without relief from some unknown quarter, decrees and sales would inevitably follow. The bondholders, represented by their trustees, were urging such decrees and sales. In the mean time the depreciated bonds were on the market, subject to the outcome of pending litigation. The majority resolved on the course deemed best for the interests of all, and urged all to join them. The known qnd was reached, ample1 opportunity for rescue having been given to the minority bondholders to appear, if they chose to incur the needed responsibility for averting the catastrophe. They did not choose to move in the matter, although invited so to do. Where, then, is the actual fraud ? None appears.. Mere inadequacy of consideration at a judicial sale does not establish a fraud.

But it is further urged that a constructive fraud exists, and on the solution of that question, if none other applies,. these suits must, hinge. Every authority cited, and many others, have been carefully examined in order to reach a right conclusion. Most of the cases have- turned upon the action of a trustee in buying for himself the prop* erty of his beneficiary, or speculating upon his trust, in some way, for his own benefit, to the detriment of those whose interests were entrusted to him for their protection. He cannot be agent of both buyer and seller, and favor one to the injury of the other, his double .relationship being concealed. It is not necessary to refer to cases of attorney and client, guardian and ward, etc. Kennedy & Co. were the representatives of the Amsterdam committee in an agreement pronounced by Justice Miller to be perfectly legitimate. As such representatives, they were bound to see that the syndicate complied with the contract made. They held the securities in their hands for the enforcement of the contract. That could not ho effected until after decretal sales and confirmations. Those decretal sales were to be for the benefit of all bondholders, and every bondholder and stranger was invited to purchase. Full publicity was given. When Mr. Kennedy became a trustee by appointment, what was his duty to the bondholders? Evidently, to enforce their rights through foreclosure. All other means had failed. His duties as representative of the Amsterdam committee, instead of being repugnant to his duties as trustee, were in entire accord. If, however, he, in actual fraud of the rights of the minority bondholders, entered into a scheme with the so-called syndicate to sacrifice the property, so that the syndicate should acquire the same in a way to defraud the minority, then not a constructive hut an actual fraud existed. As already stated, no actual fraud is shown, and no constructive fraud appears.

The result is decisive of all three of the cases. Yet it Is not improper to remark that courts of equity scan with great distrust all champertous suits. It is clear that the Strieker and Messchaert suits are tainted with champerty. It does not appear that they were the owners of any bonds until after the decretal sales and confirmations. Hence the strong dicta of the United States supremo court in recent cases are applicable. If the bonds were bought alter such judicial action, they had no value except as judicially established. Their purchasers did not acquire an assignment of a supposed right of action to impeach such judicial proceedings. It would he inconsistent, as suggested by the United States supreme court, with all rules of equity concerning property interests of the nature involved, if, after judicial sales, any one not at the time interested in the controversy could, by the purchase of one or more bonds, be permitted to assail such decrees. There may he thousands of such bonds outstanding, and one or more speculators in lawsuits could, if a different rule obtained, stir up litiga tion indefinitely. If he bought bonds after the judicial decrees, he bought subject thereto.

As to the sale in gross, the courts have decided that such is the legal and proper mode in this.class of cases. This court has not failed to notice the difference between the decrees entered in the state court and those usually entered in like case as in this court under the $15,000,000 mortgage. Hence the evidence was closely scrutinized.in that regard. Why a clause was not inserted in the decrees permitting the minority bondholders to come in after purchase within a limited time, on equal terms with purchasing bondholders, is not disclosed. There may have been adequate reasons to the contrary, and it is not for this court to revise those decrees in that respect, or as to any other of their details.

The result is that each of these three cases must be dismissed, with costs, and a decree will be entered accordingly.