De Bearn v. Winans

¹⁴² Pearce, J., delivered tlie opinion of the Court. The two appeals which are embraced in this Record were both taken from the decree of Circuit Court No. 2, of Baltimore City, which was passed in pursuance of, and for the purpose of carrying into execution, the decree of this Court passed December 3rd, 1909, in the case of Prince de Bearn v. Winans and Latrobe, trustees, et al., reported in 111th Md. 434 to 480. By that decree, a former decree of Circuit Court No. 2, of Baltimore City, was reversed, this Court holding in the opinion filed, that Prince de Bearn was entitled to a decree setting aside the distribution of the fund then in controversy, made by the Orphans’ Court of Baltimore City, and cancelling the releases which had been given by the Prince in his own right, and as guardian for his two infant children, to the said Winans and Latrobe, as trustees, and as administrators c. t. a. of the deceased wife of the Prince, and that he was further entitled to have the two-thirds of the trust fund which was distributed to his two said children awarded and paid over to him absolutely, and ■to hold the same in his own right; and a decree was accordingly passed remanding the cause for further proceedings in conformity with the views expressed in said opinion. During the pendency of the original proceedings in the lower Court, and under an order of that Court, the guardian acl litem of the two infant children of the Prince employed Messrs.

Bernard Carter and John E. Semmes to protect the interest of said infants, and these gentlemen filed answers for said infants. But as Mr. Semmes already represented the trustees and administrators, he thereafter acted for them only, and Mr. Carter alone represented the infants, and argued the case in their behalf both in the lower Court and in this Court. No application was made by Mr. Carter for the allowance of a fee for his said services until after the case was remanded to the Circuit Court, but subsequent thereto such application was made in said Court, and a fee of $3,000 was allowed by order of the Court subject to the usual exceptions upon the auditor’s report and account. The ¹⁴³ Prince excepted to the allowance of any fee to Mr. Carter out of any portion of the fund, and Mr. Carter excepted to the refusal of the Court to allow him $4,000, which was the amount he claimed as a reasonable fee, and to the refusal of the Court to allow him more than $3,000, but both exceptions were overruled, and the auditor’s account so far as related to the allowance of said fee of $3,000 was ratified by the decree of June G, 1910.

Mr. Carter has appealed from that decree in so far as the Court thereby refused to allow him $4,000, or to allow more than $3,000 for his said services, and the Prince has appealed from the whole of said decree. On December 28th, 1909, Erancis de Bearn, Pierre de Bearn and Odón de Bearn, all brothers of the Prince, filed a joint petition asking leave to intervene in the case as attaching creditors of the Prince against certain securities, the title and ownership to which they alleged to be involved in the case, and leave being granted they filed such petition alleging that the Prince was indebted to Pierre de Bearn in the sum of $5,460, with accrued interest; to Francois de Bearn in the sum of $7,384.80, with accrued interest; and to Odom de Beam in the sum of $20,951.50, with accrued interest; that non-resident attachments on these respective claims had been issued out of the Superior Court of Baltimore City, the Prince being a resident of the Republic of France, and that these attachments had been laid in the hands of the American Bonding Company, a corporation of the State of Maryland, with its principal office in the City of Baltimore; also in the hands of the several persons named as constituting the members of the firm of Alexander Brown & Sons, of Baltimore City; that when said attachments were so laid, said American Bonding Co. and said Alexander Brown & Sous had in their joint custody and control, bonds of the Yew York Central and Hudson River Railroad of the value of $29,000, and bonds of the Chicago, St. Paul, Minneapolis and Omaha Railroad of the value of $156,000, which bonds were registered in the names of the two said infant ¹⁴⁴ children of the Prince, and were deposited in a sáfe deposit box in the vault of the Safe Deposit and Trust Co., of Baltimore City, rented by and in the names of the said American Bonding Co. and the Alexander Brown & Sons, so as to preserve their said joint custody and control; that since said bonds nau ueen so registered they had been by this Court adjudged to be the absolute property of the Prince, and they were credibly informed that the Prince was about to apply to that Court for a decree, directing, among other things, that said bonding company, its officers and agents, and any other corporations or partnerships having possession of said bonds, forthwith to deliver all of them up to him or to his attorney in fact upon presentation of a copy of such decree; and that the clerk of said Court should upon presentation of said bonds to him, make such endorsement upon them, or execute such separate instrument relating to them as might be necessary to effect their transfer upon the books of the corporations in which they are registered, from said infants to said Prince. The petition then charged that such an order or decree would be a violation of the rights of the petitioners and of the lien which they claimed to have acquired by their said attachments, and prayed that no order be made directing or permitting the delivery of said bonds to the Prince, or their removal out of the jurisdiction of that Court until the trial and final determination of sam attachments. On January 29th, 1910, a similar petition was filed by Jean Baptiste Chaumet, who had issued an attachment out of the said Superior Court of Baltimore City upon an alleged indebtedness of the Prince to him in the sum of $20,076.70.

On February 4th, 1910, the Prince united with the four above-named attaching creditors in a petition, alleging that all parties to said attachments had agreed among themselves “with respect to the amount of the respective claims which constitute the causes of action in said suits, and the said indebtedness shall be discharged by means of the sale of certain bonds hereinafter mentioned”, and praying that the ¹⁴⁵ American Bonding Company and Alexander Brown & Sons, and said four attaching creditors he made parties to the cause; and that subpoenas be directed to said American Bonding Company and to said Alexander Brown & Sons, and that they be directed to bring said bonds into Court to be distributed as should be decreed, and on the same day an order was passed as prayed. The American Bonding Company and Alexander Brown & Sons, as garnishees of Prince de Bearn had already filed pleas in the Superior Court acknowledging custody and control of said bonds as alleged, and setting out fully the circumstances under which they received and accepted such custody and control, in pursuance of the distribution of said trust fund made by the Orphans’ Court of Baltimore City, as hereinbefore stated; and later also they filed answers in the said Circuit Court Ao. 2, in response to said subpoenas,' setting out fully the proceedings in said attachments and the terms and conditions under which they held said bonds. On May 9th, 1909, Prince de Bearn filed a petition alleging that the petition of himself and said four attaching creditors of February 4th, 1910, was filed while he was in Peking, China, as secretary of the French Legation in that city; that it was subscribed by Mr. Leon, as his attorney, without previous conference or correspondence with him, and in ignorance of certain defenses which he was prepared to urg& against said attachments; that his said attorney had been im conference with the attorneys of said attaching creditors with a view to a settlement upon terms which were to be cabled to him, but no final agreement was ever reached; and because of such failure he desired to withdraw said petition and have the order passed thereon vacated. On the same day an order nisi was passed on said last-mentioned petition, and the attaching creditors not objecting, no cause was shown why the order prayed should not be passed, and on May 21st, 1910, an order was passed dismissing said petition and revoking and annulling the order previously passed thereon. ¹⁴⁶ • ■ On June 4th, 1910, the Prince de Bearn filed a petition ■that a final order and decree should he passed in accordance with the mandate of the Court of Appeals of Maryland in :the form annexed to said petition and made a part thereof. ■One of the paragraphs of the draft presented, after recit- •’ ing that the proceedings in the Orphans’ Court had been held illegal and void, declared “that the American Bonding Company and Alexander Brown & Sons had ceased to have, with ■ respect to the property constituting said deposit, any right of ■access, or indeed any right whatever.” This paragraph was • omitted in the decree passed, and in its place was substituted 'the- following: “And it appearing from the answer of the American Bonding Company that before it agreed to become surety upon the aforesaid guardian bond, it required as a i condition precedent that the deposit of the bonds mentioned in the letter of October 28th, 1908, should be made as therein set forth.” ■ In considering the propriety of this substitution, it must be noted that the Prince' in that letter of October 28th, 1908, to Alexander Brown & Sons, incorporated by him in the draft of decree presented to the Court by his coun..•sel, and incorporated also in the decree passed, expressly declared that he had agreed with the American Bonding ■Company that the bonds so deposited should not be removed by either -without the written consent of the other, to which ■removal the said bonding company not only had not consented, but in its answer expressly asserted the right to retain possession thereof until the final disposition of said "attachment suits; and, as said bonding company was no longer a party to the cause, because of the order of May 9th, 1909, annulling the previous order making it a party, it must 'be remembered that its rights could not be determined by ■any decree passed in the cause, and for that reason we think ■this substitution was a proper one. • By another paragraph of said draft, the clerk of the Court was to be directed to .make and execute such instruments relating to each of said bonds as should be requisite to effect the transfer of the registration of said bonds from the said ¹⁴⁷ infants to bearer, “and to deliver such bonds to the plaintiff or to Maurice Leon, his attorney in fact, under a power of attorney, of which a duly certified copy was to be filed in the case, subject to a provision for holding certain bonds, five in number, pending the appeal of Mr. Carter,” and for the protection of some other small items allowed in the auditor’s account and to which the Prince had excepted.

This paragraph was omitted in the decree passed, and in so far as it related to the delivery of said bonds it was properly omitted for reasons which will now bp stated. We shall advert later to that part of the paragraph which relates to the cancellation of the registration of said bonds in the names of the infant children. This Court, in the opinion in 111 Md., declared the absolute right of property in these bonds to be in the Prince, but did not direct when they should be restored to him. At the time that opinion was written, and the decree made thereon, the state of facts with which the Circuit Court had to deal when the decree now appealed from was passed had not arisen.

If they had existed, and had been before this Court when its decree was passed, no one can say whether this Court would or would not have qualified the language of the opinion in speaking of his right to have the bonds “restored to him” by adding, as the Circuit Court did in the decree appealed from, the words “at the proper time,” and that decree is not to be denounced upon that ground. It left the Prince free to assert his right of property, it declared, in said bonds by any available method in law or equity, and it was not intended by anything said in the opinion of this Court to exempt that property from liability for any legally established claims, or to aid the Prince in any way in withdrawing that property from the reach of creditors, or in violating any agreement he had entered into with respect to the custody of that property. In the decree appealed from, and immediately following the paragraph which declared these registered bond's to be ¹⁴⁸ the absolute property of the Prince, there was inserted the following paragraph: “Whereas it appears from the proceedings in this case, that certain attachments have been issued out of the Superior Court of Baltimore City by persons claiming to be creditors of the plaintiff, and laid in the hands of the American Bonding Company, Alexander Brown and Sons, and the Safe Deposit and Trust Company of Baltimore City which attachments are still pending in said Superior Court of Baltimore City, this Court will not, pending the determination of said attachment cases, order the delivery of any of the said bonds to the plaintiff; but all .of said bonds shall remain as and where they now are until the further order of this Court; this action of this Court to be without prejudice to the rights of said attaching creditors, or of the plaintiff in this case,” and it is upon this clause of the decree that the principal and important question in the case arises. . It was contended by counsel for the appellant that this case falls within the decision made in Morion v. Grafflin, 68 Md. 545 , in which it was held that though an attaching creditor acquires a lien upon the property attached under the writ, it is an inchoate lien only, which must be perfected in a Court of law, and that his remedy for that purpose being a legal one, a Court of Equity can not aid in its administration; but we are of opinion that the case before us is not governed by the case of Morton v. Grafflin .

In that case, Morton laid the writ of attachment in the hands of Grafflin as garnishee of Lawton to reach certain shares of stock and other personal property in possession of Grafflin and pledged to him to secure an indebtedness of Lawton. Morton then filed a bill in equity against Grafflin praying for an injunction to restrain Grafflin from disposing of any assets in his hands; for a receiver to take charge of the same; and that Grafflin be required to bring the assets into Court to be held pending the ascertainment of what was due from Lawton to Grafflin, and what balance would remain annlicable to Morton’s claim. There was in that case none of ¹⁴⁹ the attached property in the control of the Court of Equity, as there