Peabody v. George's Creek Coal & Iron Co.

Pattisoh, J., delivered the opinion of the Court. The subject of this appeal is two hundred shares of the stock of the George’s Creek Coal & Iron Company issued to Morris Rohinson, Agent, with certain accumulated dividends. One hundred of these shares, evidenced by certificate Mo. 616, were issued on September 8, 1838, and the remaining one hundred shares were issued as a stock dividend thereon in 1903, the certificate therefore being Eb. 3629. This certificate was not then, nor has it since been delivered to anyone.

The original certificate was delivered, hut its whereabouts are unknown. For many yéars, until 1864, after the death of Morris Robinson, no dividends were paid by the Company upon its stock. Thereafter dividends were regularly paid. The dividends payable upon the stock issued in the name of Morris Robinson, Agent, have never! been paid to anyone, but have been allowed to accumulate in the hands of the company and are still held by it until now the value of the two hundred shares of stock, together with the accumulated -dividends, is approximately seventy thousand dollars ($70,000.00). ■ In the case of Tyson v. George’s Creek Coal & Iron Company, 115 Md. 564 , this stock and the accumulated dividends are-claimed by Malcolm V. Tyson as adminis ⁶⁶¹ trator of Morris Robinson, his contention being that it was the individual property of Morris Robinson and that he as his administrator was entitled thereto, but this Court refused to adopt his contention, and affirmed the ruling of the lower Court in its refusal to direct the defendant company to issue to him as administrator a new certificate in lieu of certificate ETo. 616, which was therein alleged to have been lost or destroyed, and to transfer unto him certificate Efo. 3629, issued for the additional stock, and to pay over unto him the aforesaid accrued dividends, as prayed in his bill.

In this ease the appellants claim ownership of the above mentioned stock and the accrued dividends, and in the prayer of their bill, filed in the Circuit Court ETo. 2 of Baltimore City, they ask for a mandatory injunction requiring or directing the defendant corporation, (a) to issue a new certificate unto them in lieu of the alleged lost certificate ETo. 616; (b) to transfer unto them certificate Efo. 3629; and (c) to pay over unto them all accrued dividends that may have been earned upon said stock, etc. In their bill they allege that their uncle George Peabody, a native of Massachusetts, a banker engaged in business both in London and the United States, a few months before his death, on September 28, 1869 , executed a deed of trust to George Peabody Russell, Robert Singleton Peabody, and Charles W. Chandler, Trustees, assigning and conveying to them, for the purposes therein stated, the property therein mentioned. This deed contained a provision for the substitution of other trustees in the event of vacancies occuring by reason of death or resignation, and in accordance therewith the appellants Charles B. Peabody and Henry C. Little were elected as successors to Robert Singleton Peabody and Charles W. Chandler, both deceased, while no successor to George Peabody Russell, now deceased, has been named. In naming the property therein assigned or conveyed as aforesaid, we find in paragraph seven of the said deed of trust, a copy of which para ⁶⁶² graph is filed as an exhibit with the bill, this language; “All my right, title and interest in and to the assets of the Bank of the United States, conveyed to me by deed of Samuel Jauden and others, dated June 25, 18 6 Y.” The bill alleges that it with the exhibits filed show that in the assets of the bank so assigned unto him, and for which he paid the sum of one hundred thousand dollars, are included the one hundred shares of the stock of the defendant company which had originally come into the bank’s possession on May 23, 1839, (if not before) as collateral for a loan of $3090. made to James Watson Webb. This stock, as the bill alleges, was issued on September 8, 1838, by the defendant Company in the name of Morris Robinson, Agent, and the certificate therefor was Eo. 616; that these one hundred shares had been part of one hundred and seventy shares which had originally been issued on July 3, 183Y, to James Watson Webb and which had been placed as collateral by said Webb with the American Life Insurance and Trust Company for a loan of $1500., and that on August 18, 1838, twenty-seven shares of said one hundred and seventy shares had been delivered to Patrick McCauley for certain English shareholders, and the remaining one hundred and forty-three shares had been put in the name of John Duer, Vice-President of the American Life Insurance and Trust Company, to secure the said indebtedness to the insurance company.

That subsequently, on September Y, 1838, upon a reduction of said indebtedness to the insurance company, the one certificate for one hundred and forty-three shares was changed to two certificates, one for forty-three shares, issued in the name of John Duer, Vice-President of the said insurance company, and the other for one hundred shares issued in the name of Morris Robinson, Agent, and the bill alleges that the said one hundred shares so issued to Robinson as agent, were never thereafter transferred upon the books of the defendant company, but were, as the bill states, deposited with the Bank of the United States as ⁶⁶³ collateral for the loan of $3090 made to 'James Watson Wehb. • As alleged in the bill and shown by the exhibits filed therewith, the Bank of the United States in 1841 made three deeds of assignment for the benefit of its creditors; the first on May 1st, to Dundas and others, trustees; the second on June 7th, to John Bacon and others, trustees, and the third on September 4th and 6th, to James Robertson and others, trustees. The last mentioned deed assigned all assets not assigned by the other two deeds, and also all assets that might remain in the hands of the trustees in the other two deeds after they had performed the trusts created by said deeds. In the first of these deeds, as the bill alleges, no mention is made of either the note of Webb for $3090. or of the collateral said to have been deposited therewith. To the deed of June 7th there was attached a schedule of assets, and among others appears the item, “1839, July 25, J. W. Webb, $3090.

Recorded July 1, 1841,” but no mention is made of the one hundred shares of stock of the defendant company. As shown by the bill and exhibits filed therewith, Webb, on Eebruary 2, 1842, filed his petition in the District Court of the United States for the Southern District of New York, applying for the benefit of the Bankrupt law, and in his schedule of debts filed therewith appears the item, “To the Bank of the United States, of Penn., the sum of $3090. with interest from the 25th day of July, 1839, to wit; my note dated the 23rd of May, 1839, for the sum of $3090., drawn to the order of Morris Robinson, of the City of New York, payable sixty days after date, and discounted by said bank on a deposit of one hundred shares of the stock of the George’s Creek Goal & Iron Company.” And later, on September 19th. of the -same year, one James Iddings, of New York, filed a claim “In the matter of James Watson Webb, Bankrupt,” to which is attached his affidavit in which» it is stated that ⁶⁶⁴ Webb was indebted to “The Bank of the United States of N”ew York in the sum of $3090. and interest from the 25th day. of July, 1839, on his note due that date. * * * * That according to the best of his knowledge and belief no security or satisfaction whatsoever has been received at any time for said debt or any part thereof except the certificate for 100 shares of the George’s Creek & Iron Company of doubtful value.” It is alleged by the bill and shown by the exhibits therewith filed that Richard Bayard and others, trustees of the Bank of the United States under the deeds of September 4th and 6th, 1841, by deed dated May 21, 1855, conveyed all the remaining assets in their hands to Samuel Jaudon and others, and that at such time there remained in the hands-of the trustees of said bank under the deed of June 7, 1841, certain unadministered assets that .were not required for the performance of the trusts, in as much as said trustees had paid to their cestui que trusts all moneys owing to them. These assets were claimed by Samuel Jaudon and others, trustees, and were paid over to them by the surviving trustees of June 7, 1841, after an auditor’s account had been stated and filed in November, 1855. Attached to this auditor’s report was a list of the assets of the bank at that time held by said trustees under the deed of June 7, 1841.

In this list we find the following assets: “J. Watson Webb, $3090.” It is further alleged by the bill and shown by exhibits therewith filed that on December 31, 1866, more than eleven years after the execution of the last named deed, the said Samuel Jaudon and others, trustees, filed their petition in the Court of Common pleas of Philadelphia, in which they stated, in substance, that they had been offered by George Peabody, of London, $100,000.00 all the remaining assets of. the United States Bank then in their hands, and that for the reasons stated therein they thought the amount offered was the full value of such assets and asked that they be allowed to accept the offer. By ⁶⁶⁵ an order of Court passed on the said 31st day of December, 1866, the prayer of the petition was granted and the trustees were authorized to accept said offer and make sale thereunder of the remaining assets in their hands. To the petition above mentioned was annexed a schedule said to contain a “full statement of all the said assets yet remaining in the hands of your petitioners.” In this schedule or list of assets there is no mention of either the note of James Watson Webb or of the collateral said to have been deposited therewith. And by the deed also referred to, dated the 28th day of September, 1869, George Peabody assigned and conveyed unto the said George Peabody Russell, Robert Singleton Peabody and Charles W. Chandler, Trustees, all the remaining assets of the United States Bank at such time held by him, that were conveyed to him by deed from Samuel Jaudon and others, dated June 25, 1867.

There is also filed with the bill as an exhibit the written deposition of Leigh Bonsai subscribed and sworn to by him before a Rotary Public on the 16th day of August, 1912. In this deposition Mr. Bonsai states that he had recently made an extensive examination of the deeds of assignment made by the Bank of the United States in 1841, and had also “examined the proceedings and records in the Court of Common Pleas of Philadelphia, which court had