Lipson v. Evans

• Citation: 105 A. 312,133 Md. 370
• Decision Date: 06 December 1918
• Docket Number: 53.
• Parties: LIPSON v. EVANS et al.
• Court: Court of Appeals of Maryland

105 A. 312

133 Md. 370

LIPSON v. EVANS et al.

No. 53.

Court of Appeals of Maryland

December 6, 1918

Appeal from Circuit Court of Baltimore City; Morris A. Soper, Judge.

Bill by Charles R. Evans and Samuel S. Field, executors of William H Evans, against Mary Elizabeth Lipson. From an order overruling a demurrer to the bill of complaint, the defendant appeals. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.

Eldridge Hood Young, of Baltimore (George D. Dean, of Baltimore, on the brief), for appellant.

S. S Field, of Baltimore, for appellees.

BOYD C.J.

This is an appeal from an order overruling a demurrer to a bill of complaint filed by the executors of William H. Evans (appellees) against Mary E. Lipson (appellant). The bill alleges:

(1) That among the assets belonging to the estate of William H Evans are 20 bonds of the Mapos Central Sugar Company, each of the par value of $1,000 and of the actual value, as appraised, of $700.

(2) That they were not in his possession at the time of his death, but he had loaned them to the company, together with other bonds of the company, for the purpose of permitting it to pledge them as collateral security for loans obtained for the further development of the company's extensive sugar plantations and mills in Cuba; and on August 19, 1915, the Mapos Company delivered to said Evans a receipt for the 20 bonds loaned to it for deposit with the West India Finance Company of New York City as collateral security. That the plaintiffs are informed, believe, and aver that the body of the receipt, omitting the signature, is correctly copied in the exhibit filed.

(3) That upon their qualification as executors they found among the papers of the estate of Wm. H. Evans a receipt for all the bonds of the Mapos Company which he had loaned to that company for the purpose aforesaid, except the receipt for the 20 bonds, and they promptly notified the company by letter of January 31, 1917, and subsequent letters, that they had been unable to find a receipt for the 20 bonds, that they as executors were the owners of said bonds, and that the company should not pay any interest thereon or deliver the bonds to any party excepting plaintiffs. That the bonds are still in the possession of the Mapos Company or its pledgee, but they are advised that the receipt of August 19, 1915, is in the possession of the defendant with certain indorsements thereon or attached thereto, and that she has made demand upon the Mapos Company for the payment to her of the interest or coupons upon said bonds and for the delivery to her of the bonds when they are released by the pledgee of the Mapos Company, which is now holding them. That they are advised, believe, and aver that said demand was made by defendant upon the Mapos Company by letter of March 13, 1917, to Charles Heebner of Philadelphia, Pa., who is secretary and treasurer of the company, and that she inclosed with the letter what purports to be a copy of the receipt of August 19, 1815, given by the company to said Evans, and copies of what purport to be an assignment and reassignment thereof, omitting, however, from the copies the signatures and witnesses thereto. Copies of the letter, of the receipt, and the purported assignment and reassignment, being copies of what defendant sent Charles Heebner, were filed.

(4) That the defendant obtained possession of the receipt from William H. Evans "under circumstances and conditions which give her no right in the view of a court of equity to hold the same as against the plaintiffs. That there never was any valuable consideration or any good consideration within the purview of the law or of the court for the delivery of said receipt by the said William H. Evans to the said defendant." That the plaintiffs do not know whether or not the writing which purports to be an assignment of the receipt was duly signed by said Evans, but they say that, if it was so signed, then there was no consideration, either valuable or good, for the execution of said assignment; that they do not know the fact as to the execution by the defendant of the paper purporting to be the reassignment of the bonds named in the receipt, but they say that said reassignment indicates that the defendant never acquired any title to the said 20 bonds mentioned in said receipt." That the receipt and the papers purporting to be an assignment and reassignment are in possession of the defendant, and therefore they cannot make more particular averments in reference to them. "But they charge and aver that the defendant obtained possession of said receipt, and of said paper purporting to be assignment of the bonds mentioned in said receipt, without any consideration, and under circumstances which give the defendant no title or right to said bonds, or to the income or interest thereon." That the possession of the receipt and of the paper purporting to be an assignment of the bonds is a cloud upon the title of the plaintiffs to said bonds and prevents them from receiving from the Mapos Company the income or interest upon them, or said bonds, and that the defendant should be required to deliver up the receipt, together with the paper purporting to be an assignment of the bonds, to the plaintiffs.

The bill then prays that the defendant, a resident of Baltimore, be required to bring into court, to be surrendered to the plaintiffs, the receipt and the paper writing purporting to be an assignment of the 20 bonds from Evans to her, and for general relief.

The copies of the letter to Mr. Heebner, of the receipt, and of what purport to be the assignment and the reassignment filed with the bill, are as follows:

"Baltimore, Md., March 13, 1917.

Mr. Charles Heebner, c/o The Reading Building, Phila., Pa.-Dear Sir: I wish to notify you I am a holder of twenty thousand dollars worth of bonds of the Mapos Central Sugar Co. I also wish to state that when the interest is next due on these bonds that you will send me the clippings for the amount.

Thanking you in advance, I am

Very truly yours,

[Signed] Mrs. Mary Elizabeth Lipson.

1710 John St.

P. S. I am inclosing you a duplicate copy of the recite I now hold."

"$20,000. Baltimore, August 19, 1915.

Received of William H. Evans, of Baltimore City, first mortgage bonds of the Mapos Central Sugar Co. to the amount of twenty thousand ($20,000) dollars, which he has agreed to loan to the Mapos Central Sugar Co. for deposit with the West India Sugar Finance Co. of New York City, as a collateral security for the fulfillment of an existing contract.

The Mapos Central Sugar Company hereby agrees to refund and deliver to the said William H. Evans, his heirs or assigns, first mortgage bonds of the corporation to the amount of said loan of bonds, viz. ($20,000), on or before the 20th day of August, 1916, or as soon thereafter as this company has settled their account with the said West India Sugar Finance Company for loans of money advanced to this company for the seasons of 1915 and 1916.

In witness whereof, the Mapos Central Sugar Company, by its proper officers, duly authorized, hereby affixes its name and corporate seal of this receipt and agreement this 19th day of August, 1915.

Witness: _____."

"Assignment of the Bonds Named in the Within Receipt.

For one dollar and other good and sufficient consideration, the receipt is hereby acknowledged, I, the undersigned, William H. Evans, of the city of Baltimore, Md., hereby assigns to Mrs. May Elizabeth Lipson, of Baltimore City, the twenty thousand dollars ($20,000) of the first mortgage bonds of the Mapos Central Sugar Company, specified on the within receipt, and I, by these presents, hereby authorize and instruct the Mapos Central Sugar Company, by its duly appointed officers, that when the said $20,000 bonds have been surrendered by the West India Sugar Finance Company of New York (who now hold same as collateral security), that they are to deliver same to the said Mrs. Mary Elizabeth Lipson or to her heirs, or assigns, on the surrender of the within receipt containing this indorsement of assignment of said $20,000 of bonds.

In testimony whereof I, the said William H. Evans, hereby affix my name and seal this 18th day of September, 1915.

_____ _____.

_____."

"Reassignment of the Bonds Named in the Within Receipt.

For $1 and other good and sufficient considerations received by me, and which I hereby acknowledge, I, the undersigned, Mrs. Mary Elizabeth Lipson, of Baltimore City, Md., hereby assign and authorizes and directs my executors, heirs or assigns, that in the event of my death, or disability, to deliver to William H. Evans, or his legal representatives, or assigns, the twenty thousand dollars ($20,000) of first mortgage bonds of the Mapos Central Sugar Company, above assigned to me, and specified in the within receipt from said company, if same have been delivered to me, or if not so delivered, and in lieu of said delivery, then I hereby authorize and instruct my executors, heirs or assigns, to deliver to said William H. Evans, his legal representatives or assigns, the within receipt, so as to enable him to receive from said company the said $20,000 of bonds, when same have been surrendered by the West India Sugar Finance Company of New York City, who now hold said bonds as collateral security from said company, and possess same for his own use and personal property.

In witness whereof, I, the said Mrs. Mary Elizabeth Lipson, hereby affix my name and seal this 18th day of September, 1915.

_____. _____.

_____."

The reasons assigned for the demurrer are: (1) That the bill does not state any cause entitling the complainants to relief in equity; (2) tha...