Stephens v. Sherman

22 F. Cas. 1284

This text of 22 F. Cas. 1284 (Stephens v. Sherman) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the Southern District of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stephens v. Sherman, 22 F. Cas. 1284 (circtsdia 1879).

Opinion

LOVE, District Judge.

It is not our purpose to decide any question which is not in our view necessary to the determination of the case, and therefore we omit to decide the question of the validity of this mortgage under the bankrupt law. The question which we purpose to consider and decide is whether or not the mortgage in suit can, under the facts and circumstances established by the evidence, be sustained as against creditors at common law. The parties to this mortgage have given much conflicting testimony respecting the material facts connected with it. Indeed, it seems to be a law of nature with them to contradict one another. Whatever Allen affirms Stephens and Blennerhassett deny, and whatever Stephens and Blennerhassett affirm Allen directly controverts. We shall spend no time in the vain effort to sift, weigh and reconcile their testimony. It must be obvious to any one who has given careful attention to the record in this case that no court could safely place its judgment upon the testimony of these witnesses. Their disregard of truth and of moral obligations is so apparent that except where they happen to be corroborated we cannot rely upon their testimony. Fortunately there is, irrespective of their testimony, abundant evidence in the record to guide the judgment of the court. This evidence is found in the correspondence between these parties, and in facts and circumstances which can be neither denied nor coloured.

It is absolutely necessary to a clear and distinct understanding of the reasoning of the court which is to follow that we should state some preliminary facts, having no direct bearing upon the question which is in our view decisive of the case.

This court, in October, 1868, appointed B. F. Allen receiver in the case of Mark Howard v. The City of Davenport and others. The possession and control of the trust fund which the court placed in his hards, con[1286]*1286sisting principally of 540,000 dollars of tlie 1st mortgage bonds of the Rock Island Railroad Oo., evidently awakened in the mind of Mr. Allen a mania for speculation. He very soon became a great speculator, a great borrower and a great loser. The catalogue of his losses is somewhat startling. He brought himself in a very short time to a condition of hopeless insolvency. When, after a protracted litigation, the court, in the year 1S73, called for the trust fund in question, the bonds were not within Mr. Allen’s control. He had pledged them for loans in New York, and had lost them. In this emergency he resorted to the expedient of purchasing a controlling interest in the Cook County National Bank of Chicago. The capital of this institution was $500,000; its deposits about $13,000.00. Mr. Allen paid the greater part of the money required to purchase his interest in the bank out of the means of the bank itself, and, having the control and management of the institution, he paid out of its means and assets the sum of about $540,000 to the receiver fund. This was the first sum demanded by the parties controlling that fund. There is no doubt that this transaction reduced the Cook County Bank to insolvency. From this time forward until its final suspension the Cook County Bank, under Allen’s management, struggled for existence in a crippled condition.

The banking house of Allen, Stephens & Co. was established in New York in January, 1872. They commenced business without a dollar of actual capital, and in fact paid for the fixtures and furniture of the house out of their depositors’ money. Allen was the only person of reputed responsibility in the firm, and he was then, without doubt, in a state of commercial insolvency. ■ The other members of the firm, Stephens and Blennerhassett, were without means or capital. The exclusive management of this New York house was with the junior members of the firm. They soon secured large deposits, and seem to have done a prosperous business until the spring and summer of 1874. At that time, Stephens and Blennerhassett invested the sum of $400,000 in a silver mine in the territory of Utah, every dollar of which was lost. This transaction brought the firm of Allen, Stephens & Co. to insolvency. It is true that Blennerhassett artfully tempted Mr. S. H. White, treasurer of the Charter Oak Insurance Co., into this speculation, by which Mr. White lost of the money of that company one-third of the sum of $400,-000; so that the actual loss of Allen, Stephens & Co. was finally, in round numbers, only $266,666. Stephens and B., nevertheless, managed to keep the firm of Allen, Stephens & Co. afloat in a wrecked condition; and in the months of October and November, 1874,‘that firm, as they claim, advanced to Allen and the Cook County Bank, at his request, the large sums of money which resulted in the debt secured by the mortgage in question. They undoubtedly, though in fact insolvent, had the control of large sums of money belonging to their depositors and other creditors. The necessity of their situation compelled Stephens and Blennerhassett to sustain Allen and the Cook County Bank, because, if either Allen or the bank had suspended, the bankruptcy of the firm of Allen, Stephens & Co. would inevitably have followed, and the Mono-mine transaction would have been exposed. No one doubts or questions the fact at the time of the execution of the mortgage Allen was insolvent. Stephens and Blennerhassett both, however, deny that they knew of Allen’s insolvency. Allen testifies that they knew all about his financial condition, but Stephens and Blenner-hassett swear that they believed Allen to be perfectly solvent. Whoever attends to the correspondence between these parties from early in October, 1874. when the dSbt in question commenced accumulating, till the 18th day of November, when it amounted to the sum of $465,476.88, will be astonished at the sworn statement of Stephens and Blennerhassett that they believed Allen to be perfectly solvent.

The correspondence in question clearly and unmistakeably reveals the financial condition of Allen, and Stephens' and Blennerhassett's knowledge of it. But, independent of the conclusive evidence furnished by this correspondence, the very fact that Allen had become indebted to them for advances and overdrafts to the amount of nearly a half a million, which he could not pay or provide for, and which he repeatedly acknowledged, his inability to pay was most cogent evidence to the minds of Stephens and Blennerhassett that Allen was in a state of commercial insolvency. The evidence of Stephens’ and Blennerhassett’s knowledge of Mr. Allen’s insolvency when the mortgage was executed, and during the sixty days when it was withheld from record, Is to our minds absolutely conclusive. We have carefully collected and arranged this evidence, and we append it to this opinion in order that, if the supreme court shall see fit to determine the question of the validity of the mortgage under the bankrupt law, the judges of that court may find this evidence in a convenient form, without the necessity of searching for it. as we have done, through the immense record which is before us.

The general conclusions of fact which we deduce from the evidence are the following: 1st. That B. F. Allen was at the time of the execution of the mortgage insolvent, and that Stephens and Blennerhassett had reason to know, and did know, the fact of his insolvency. 2nd. Stephens and Blennerhassett secreted the mortgage, and, as a part of their scheme of concealment, withheld it from record, with intent to give B. F.

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Bluebook (online)
22 F. Cas. 1284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-sherman-circtsdia-1879.