Bryson v. Rayner

• Citation: 25 Md. 424
• Parties: WILLIAM J. BRYSON v. WILLIAM S. RAYNER.
• Decision Date: 14 July 1866
• Court: Court of Appeals of Maryland

25 Md. 424

WILLIAM J. BRYSON v. WILLIAM S. RAYNER.

Court of Appeals of Maryland

July 14, 1866

If a pawnee has two remedies, to sell at law after default and notice, or to foreclose in equity, no reason exists why a pledgor should not be furnished with the equitable remedy to redeem.

APPEAL from the Superior Court of Baltimore city, in Equity:

The bill in this case was filed on the 24th of December, 1863, by the appellant against the appellee. The object of the bill was to compel the appellee to return to the appellant nineteen shares of the stock of the Powhatan Steamboat Company, transferred to him as collateral security for the repayment of a loan. The facts of the case sufficiently appear in the opinion of this Court. The Court below (MARTIN J.,) dismissed the bill of complaint on the ground that the case presented no fact authorizing the interposition of a Court of Equity; from that decree this appeal was taken.

The cause was argued before BOWIE, C.J., and BARTOL and WEISEL J.

George H. Williams, for the appellant, contended:

That the appellant, as mortgagee, has a clear right to redeem, and to an account, unless he has been foreclosed in some mode recognized by law, and that these shares were mortgaged, not pledged. Ryal vs. Roberts, 3 Barnard, 38. Huntingdon vs. Mather, 2 Barbour, S. C., ( N. Y.,) 542. Story on Bailments, sec. 287. That a bill to redeem will lie. Patchen vs. Pierce, 12 Wend., 61. Charles vs. Stevens, 3 Denio R., 33. 2 Story Eq., secs. 1032 1008. 2 Kent Com., 582, 583. Hart vs. Ten Eyck, 2 Johns. Ch. Rep., 100.

That though a decree for sale for foreclosure is not necessary yet the stock must be sold upon due notice to the mortgagor of the time and place of sale, and at public auction after advertisement in the public newspapers, to give the debtor a chance to be present to see if the sale be fairly conducted. 4 Kent's Com., 139, sec. 58. 2 Kent's Com., 583, sec. 40. 16 New York Rep., (2 Smith,) 399, 400.

A sale at a brokers' board will not suffice. Castello vs City Bank, 1 N.Y. Legal Observer, 25. See this case in 4th Abbott's N.Y. Digest, 553, 554. Brown vs. Ward, 3 Duer's Rep., 663. Rankin vs. McCullough, 12 Barbour, 107.-- Story on Bail., 286, 287. Story's Eq. Jur., 1031, 1032.

That the sale of the nine shares, and the attempt to sell the ten shares by private sale and private arrangement are illegal; that as to the ten shares yet held by Rayner, the decree must be for their restoration and for an account of the dividends; and that as to the nine shares, the decree must be for the return of nine other shares if it can be proved before the auditor that he has them, or full compensation for their value on proof, with a like account for dividends. Torry vs. Bank of Orleans, 9 Paige, 649, 653.

Even if this was a pledge, yet the remedy is in equity to redeem and for an account of dividends. Hasbrouck vs. Vandervoort, 4 Sandford N.Y. Rep., 78.

That as equity will enforce a contract to mortgage personal property, so ought it to entertain a bill to redeem it when mortgaged. Trieber vs. Burgess, 11 Md. Rep., 464.

Benjamin F. Horwitz, for the appellee, contended:

1st. That if the complainant was entitled to relief, then he has an ample remedy at law, and there is no jurisdiction in a Court of Equity to grant him relief.

The deposit of the stock in this case was a pledge, and not a mortgage. The pledgee had the possession of the pledge, with a special property. He had a right to detain it as a security for his debt, but the general ownership remained with the pledgor. The pledgee had no right to sell until he had first demanded payment of the pledgor, who could redeem, at any time before sale, on tender of the amount due. In the case of a mortgage of a chattel, the entire title passes to the mortgagee, and the interest of the mortgagee becomes absolute, if the property mortgaged be not redeemed at a fixed time; which, however, may be defeated in a Court of Equity. Story on Bailments, secs. 286, 287. Story's Eq. Jur., secs. 1030, 1031, 1032. Cortelyou vs. Lansing, Adm., 2 Caines' Cases in Error, 202. Jones vs. Smith, 2 Vesey, Jr., 378. Wilson vs. Little, et al., 2 Comstock, 443.

In such a case the remedy is at law, either by an action of trover or assumpsit, usually the former; the pledgee, after tender and refusal, being treated as a wrong-doer, and as having converted the property. Story on Bailments, secs. 339, 341. Story's Eq. Jur., sec. 1032. Cortelyou vs. Lansing, Admr., 2 Caines' Cases in Error, 211. Jarvis vs. Rogers, 15 Mass., 389. Stearns vs. Marsh, 4 Denio, 227. Sedgwick on Measure of Damages, 365. Clark vs. Gilbert, 5 Bing. N. S., 356. Thomas vs. Waterman, 7 Metf., (Mass.,) 230.

The aid of a Court of Equity may be invoked by a pledgor, in certain special cases, that is, provided there is a discovery required and demanded as essential and necessary for the complainant's case, or where there are mutual conflicting or complicated accounts, which are too large or too complicated to be adjusted in a Court of Law, but in those cases the jurisdiction is entertained solely on the ground either of "discovery" or "account," two separate and well recognized grounds of equity jurisdiction. The necessity, however, must be apparent and real, and not used as a subterfuge in order to change the proper and recognized jurisdiction. Equity sometimes entertains jurisdiction in cases where the thing pledged has been assigned by the pledgor, but even then, only where a "discovery" is necessary and required, as in case the assignee cannot find out the sum due in order to make a tender.

As to the rule which entitles a Court of Equity to interfere in cases where an account is asked for, see, Frietas vs. Dos Santos, 1 Y. & J., 574. King vs. Rosset, et al., 2 Y. & J., 33. Dinwiddie vs. Bailey, 6 Vesey, Jr., 372. Oliver vs. Palmer, 11 G. & J., 442, 443. Lawson, et al. vs. Davis, 7 Gill, 345. Story's Eq. Jur., secs. 458, 506. As to the rule in cases of assignment, see, Kemp vs. Westbrook, 1 Vesey, Sr., 278. Adair vs. Winchester, 7 G. & J., 114.

In this case, however, there was no assignment, and there is no discovery required or asked for, consequently no good reason can be assigned for resorting to a Court of Equity. The remedy is ample and complete at law, "a Court of Law," in the language of Chancellor KENT, (2 Caines' Cases, 211,) "having complete jurisdiction over the subject;" and it is submitted, the learned judge below was correct in dismissing the bill for want of jurisdiction, which he did after full argument, and after a deliberate examination of the question.

2d. The sale of the nine shares of stock was made bona fide, after full notice to the pledgor, and it was a sale made at the time, and in the mode chosen by himself, in the paper marked "defendant's exhibit No. 12," and it is, therefore, unimpeachable, even if that question were before this Court on the complainant's bill, which, it is submitted, is not the case.

The evidence shows that the complainant knew of both the sales at the times they were respectively made, and he proves them by his own witnesses, Wheedon and Scott, and yet does not ask to have them set aside, or refer to them in his bill in any way. On such a bill no such relief could be granted, and the Court can only decree according to the allegations contained in the bill and the prayer for relief. The prayer for general relief does not cover such a case. Legal vs. Miller, 2 Vesey, Sr., 299. Lord Walpole vs. Lord Orford, 3 Vesey, Jr., 413 & 416. Scudder vs. Young, 25 Me., 153. Hobson vs. McArthur, 16 Peters, 182. Smith vs. Smith, 4 Johns. Ch. R., 281. Story's Eq. Pl., sec. 42.

3d. No decree could, under any circumstances, pass in this case in reference to the nine shares, as Mr. Wheedon, the owner thereof, and the party who has received the dividends thereon, which was known to and proved by the complainant himself, is not made a party to this suit. Buchanan vs. Torrence, 11 G. & J., 342. Cromwell vs. Owings, 6 H. & J., 10.

4th. The sale of the ten shares of stock was made at the very highest and best market price, after due notice, as contained in defendant's exhibit No. 7, and after every effort to sell on the part of the stock brokers, which mode of sale, to wit: by broker, was indicated by the complainant, as shown by defendant's exhibit No. 12, to be the one preferred and chosen by himself; the broker was, therefore, the party making the sale; he occupied the same relation towards the parties as a trustee appointed by a Court of Equity, and the pledgee had a right to purchase the stock from him, the pledgor's chosen agent of sale. But if it be looked upon as a sale made by Rayner himself, yet if it be further considered that under the circumstances of the case, he was obliged unwillingly to purchase the stock in order to save himself, which the complainant's own witnesses show to be the fact, then such a sale, if it were not supported and upheld by a Court, would be voidable only and not void absolutely, and could not be so treated by the complainant, who is shown to have had notice of it, and who, therefore, would be obliged to ask in his bill to have it set aside as preliminary to any relief he might seek. Williams' Exrs. vs. Marshall, 4 G. & J., 376. Richards vs. Jones, 3 G. & J., 163. 1 Code, 446, secs. 12 & 13. Jackson vs. Walsh, 14 Johns., 407. Harrington vs. Brown, 5 Pick., 521.

5th. The enhancement in the value of the stock since the sales is no ground for setting them aside, and can only be looked at as furnishing evidence of bad faith on the part of the complainant. Davis vs. Simpson, 5 H. & J., 149. Tyson vs. Mickle, 2 Gill, 376.

6th. That if the complainant had any remedy, it has been lost by reason of his being of full age, under no...