Lipson v. Evans

• Citation: 133 Md. 370,105 A. 312
• Decision Date: 06 December 1918
• Docket Number: No. 53.,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.

Dec. 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 permit ting 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

105 A. 313

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...