Bankers Mortgage Company v. Sohland
| Decision Date | 02 May 1927 |
| Citation | 138 A. 361,33 Del. 331 |
| Court | Delaware Superior Court |
| Parties | BANKERS MORTGAGE COMPANY v. ALFRED SOHLAND |
Superior Court for New Castle County, September Term, 1926.
Foreign Attachment, No. 173, September Term, 1926.
Case heard on petition of Citizens' Trust Company to intervene.
The Sheriff's return on the writ of foreign attachment issued in this proceeding stated that on the nineteenth day of August, A. D. 1926, he "attached all the shares of the common and preferred capital stock of Alfred Sohland in Bankers' Mortgage Company, a corporation existing under the laws of the State of Delaware, with all the rights thereto belonging."
Rev Code 1915, § 4137, provides:
"The Court shall make an order that the sheriff shall sell the property attached."
The intervening petition of the Citizens' Trust Company was duly sworn to and was filed on the sixteenth day of December A. D. 1926. This petition, among other things, in substance alleged that on or about the twenty-second day of January, A. D. 1925, the petitioner, in good faith and in the regular course of business, lent to Alfred Sohland, the defendant, the sum of $ 25,000; that in order to secure the payment of said sum of $ 25,000 Sohland gave his note to the petitioner, payable on demand, and, also, delivered with said note and as collateral security therefor certificate No. 285 "duly assigned" for 500 shares of the preferred capital stock of the Bankers' Mortgage Company, a corporation of the state of Delaware; that the 500 shares of preferred stock, evidenced by said certificate, were the same shares of stock attached by the plaintiff in this action; that, as of June 2, 1926, there was still a balance due on said $ 25,000 note of $ 16,475.
The petitioner then prayed that it might be permitted to intervene in this action and that a rule might be granted upon the plaintiff to show cause why an issue should not be granted, if necessary, to determine the interest of such petitioner in said 500 shares of preferred stock, and that such order of sale as might be made in this proceeding should direct the sale of said 500 shares of preferred stock to be made subject to the pledge of said stock in favor of the petitioner.
A copy of the collateral note, which in the usual form recited the delivery to the petitioner of 500 shares of the preferred stock of the Bankers' Mortgage Company, and authorized the sale of any and all securities pledged as collateral for such note, was duly attached to said petition.
The plaintiff moved to dismiss this petition.
The Citizens' Trust Company is permitted to intervene in this action.
Caleb S. Layton and James R. Morford (of Marvel, Layton, Hughes and Morford), for plaintiff.
Aaron Finger for Citizens Trust Company of Allentown, Pa., the intervening petitioner.
The plaintiff contends (1) that intervention is a right unknown to the common law and there being no statutory provision authorizing it the right contended for does not exist in this State; (2) that the rights claimed by the petitioner are purely equitable in character, and, therefore, must be litigated in the Court of Chancery.
While there may have been exceptions in certain cases in the English Ecclesiastical Courts, it is true that the right to intervene in an action at law was a civil law remedy and did not, as a general rule, exist at common law. 123 Am. St. Rep. 280, note; 18 Ann. Cas. 594, note; 23 L. R. A. (N.S.) 540, note; 20 R. C. L. 683; Pennsylvania Steel Co. v. N. J. So. R. Co., 4 Houst. 572.
For the prevention of the abuse of process, or, perhaps, more strictly speaking, for the prevention of circuity of action, and the delays and expenses arising therefrom, or as it is sometimes stated, on the ground of necessity, this right has, nevertheless, been recognized in this State, where the person seeking to intervene claims some right in or lien on the property attached. Stieff v. Bailey, 4 Boyce 508, 89 A. 366; In re Gould, 1 W. W. Harr. (31 Del.) 218, 113 A. 900.
While the authorities are not uniform, there is, however, ample support in this country for this position. Kean v. Doerner, 62 Md. 475; Megee v. Beirne, 39 Pa. 50; Pike v. Pike, 4 Fost. (24 N. H.) 384; Daniels v. Solomon, 11 App. D. C. 163; Sailor Planing Mill & Lumber Co. v. Moyer, 35 Pa. Super. 503; Gumbel v. Pitkin, 124 U.S. 131, 8 S.Ct. 379, 31 L.Ed. 374; U. S. v. Neeley (C. C.), 146 F. 764; Torreyson v. Turnbaugh, 105 Mo. App. 439, 79 S.W. 1002; 6 C. J. 373, 376, 2 R. C. L. 882; Potlatch Lumber Co. v. Runkel, 16 Idaho 192, 101 P. 396, 23 L. R. A. (N.S.) 536, 18 Ann. Cas. 591; 123 Am. St. Rep. 280.
It is true that the Delaware cases above cited are inconsistent with the Pennsylvania Steel Co. v....
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