Fred Kolze v. Charlotte Hoadley

• Decision Date: 02 January 1906
• Docket Number: No. 91,91
• Citation: 50 L.Ed. 377,26 S.Ct. 220,200 U.S. 76
• Parties: FRED H. KOLZE, Administrator, etc., et al., Appts. v. CHARLOTTE E. HOADLEY
• Court: U.S. Supreme Court

200 U.S. 76

26 S.Ct. 220

50 L.Ed. 377

FRED H. KOLZE, Administrator, etc., et al., Appts.

v CHARLOTTE E. HOADLEY.

No. 91.

Submitted December 5, 1905.

Decided January 2, 1906.

Statement by Mr. Justice Brown:

This was an appeal from a decree of the circuit court in favor of the plaintiff, Charlotte E. Hoadley, a citizen of Massachusetts, against Abraham L. Day and other defendants, among whom were Fred H. Kolze, administrator of the estate of Friederich Kolze, deceased, Lina Kolze, his widow, Louisa Kolze, his daughter, and Charles E. Stade, trustee, all citizens of Illinois, foreclosing three trust deeds given by Day to secure promissory notes in the aggregate amount of $5,400. The appeal was granted solely upon the question of jurisdiction.

The point involved requires a statement of facts at some length. They are substantially as follows:

Friederich Kolze sold and conveyed certain real estate to Day by warranty deed dated and acknowledged November 15, 1897, for a stated consideration of $45,000,—namely, $1,000 in cash and the remainder in notes secured by trust deeds. To secure such notes, Day executed three trust deeds to one Stade as trustee, conveying the real estate in question, which were dated November 17, and acknowledged and recorded November 24, 1897. Kolze thereupon intrusted the notes and trust deeds to Stade, a nephew, in whom he seemed to have great confidence, the notes being executed by Day to his own order, and by him indorsed in blank.

On February 17, 1898, Stade took the notes and trust deeds securing the same, and pledged them to Charlotte E. Hoadley as collateral security to his own notes, upon which Hoadley then advanced, or secured to be advanced, a large sum of money.

By deed dated and acknowledged November 23, 1897, but not delivered or recorded until June 30, 1898, Day reconveyed the premises to Kolze, and by deed of release, dated and acknowledged October 27, 1898, and recorded October 29, 1898, Stade, as trustee, fraudulently released said three trust deeds to Kolze, reciting a consideration of $1 and other valuable considerations, and further reciting that the notes secured thereby had been canceled.

By deed dated October 29, 1898, Kolze, now deceased, and the appellant Lina Kolze, his wife, conveyed said premises to Louisa Kolze, their daughter, upon an expressed consideration of $12,000, although the grantee was not a bona fide purchaser, and said conveyance was made to her to hold for the benefit of the family.

For the ostensible purpose of securing the payment of the purchase money, said Louisa Kolze executed a trust deed to secure her promissory note of $10,000, to Percy V. Castle, as trustee. This deed was dated October 27, 1898, acknowledged October 28, 1898, and recorded October 29, 1898, the appellant Fred H. Kolze, as administrator of the estate of his father, being the owner of said notes and trust deeds, subject, as was alleged, to the rights of the plaintiff, Hoadley.

Subsequently, on or about April 21, 1899, the notes and trust deeds of Day, upon default by Stade in the payment of his note, were sold in accordance with the terms of the collateral note, and were bought in by, and became the property of, the appellee, Hoadley.

The bill prayed that the release deed executed by Stade to Friederich Kolze be declared fraudulent and void as against the notes and trust deeds executed by Day and now owned by the plaintiff; that the rights of all the defendants be declared subject to those of the plaintiff under the notes and deeds held by her; that a receiver be appointed and an account had, and the defendants be decreed to pay whatever was due under the notes and trust deeds, and, in default thereof, that the premises be sold and the defendants be held liable for any deficiency upon such sale, and that they all be foreclosed of their right of redemption.

The defendants moved to dismiss the amended bill for want of a proper allegation of diversity of citizenship, which was overruled; and thereupon defendants interposed a plea to the jurisdiction upon the ground that the defendants were all citizens of the state of Illinois; that the suit was brought by plaintiff as the assignee of one William P. Smith, to whom the notes had been hypothecated by Stade to secure his (Stade's) note, and also to secure Smith for the faithful performance by Stade of a certain contract of employment; that upon the failure of Stade to pay his note and carry out his contract, said mortgage notes and trust deeds signed by Day were sold on or about April 21, 1899, and were bought in by and became the property of the plaintiff; that State and Smith, 'the successive assignors' of the appellee, were citizens of the state of Illinois, the same state of which Day, the maker of the notes, was also a resident, and that by reason of the fact that said suit could not have been prosecuted in a Federal court if no transfer or assignment had been made, the circuit court had no jurisdiction of the case.

This plea was held to be insufficient, and the defendants, failing to answer, were defaulted, and a decree thereafter entered to the effect that Stade, as trustee, had fraudulently released the trust deeds; that the trust deeds were valid as liens upon the premises; that the rights of Louisa Kolze, subsequent grantee under the warranty deed, as well as the deed of Kolze, were subject and subsequent to the rights of the plaintiff as the owner of the notes and deeds signed by Day; that the property be sold and the defendants foreclosed of their equity of redemption.

Thereupon defendants appealed to this court solely upon the question of jurisdiction.

Mr.John T. Richards for appellants.

Mr. Herman W. Stillman for appellee.

[Argument of Counsel from pages 80-82 intentionally omitted] Mr. Justice Brown delivered the opinion of the court:

The sole question presented by the record in this case is whether this is a suit to recover the contents of a chose in action in favor of an assignee, which could not have been prosecuted if no assignment or transfer had been made.

By § 1 of the act of August 13, 1888 [25 Stat. at L. 434, chap. 866, U. S. Comp. Stat. 1901, p. 508], it is provided that no circuit nor district court shall 'have cognizance of any suit . . . to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, . . . unless such suit might have been prosecuted in such court to recover the said contents if no assignment of transfer had been made.' This language is taken from the original judiciary act of 1789 [1 Stat. at L. 73, chap. 20, § 11, U. S. Comp. Stat. 1901, p. 508], and has been in force, except for a few years, since the foundation of the government.

In construing this clause the decisions of this court have settled the following propositions:

1. That a suit to recover the contents of a promissory note or other chose in action is a suit to recover the amount due upon such note, or the amount claimed to be due upon an account, personal contract, or other chose in action. Sere v. Pitot, 6 Cranch, 332, 3 L. ed. 240; Deshler v. Dodge, 16 How. 622, 631, 14 L. ed. 1084, 1088; Bushnell v. Kennedy, 9 Wall. 387, 19 L. ed. 736; Shoecraft v. Bloxham, 124 U. S. 730, 31 L. ed. 574, 8 Sup. Ct. Rep. 686.

In Corbin v. Black Hawk County, 105 U. S. 659, 26 L. ed. 1136, a suit to compel the specific performance of a contract was held to be within the statute, Mr. Justice Blatchford observing (page 665, L. ed. 1138): 'The contents of a contract, as a chose in action, in the sense of § 629 (U. S. Comp, Stat, 1901, p. 503), are the rights created by it in favor of a party in whose behalf stipulations are made in it which he has a right to enforce in a suit founded on the contract; and a suit to enforce such stipulations is a suit to recover such contents.'

2. That a suit to foreclose a mortgage is within the inhibition of the act, and can only be maintained where the assignor was competent to file the bill. Sheldon v. Sill, 8 How. 441, 12 L. ed. 1147; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70, 8 Sup. Ct. Rep. 1096.

3. That the bill or other pleading must contain an averment showing that...