Scarborough v. Scotten

• Decision Date: 13 June 1888
• Citation: 14 A. 704,69 Md. 137
• Parties: SCARBOROUGH v. SCOTTEN ET AL.
• Court: Maryland Court of Appeals

14 A. 704

69 Md. 137

SCARBOROUGH v. SCOTTEN ET AL.

Court of Appeals of Maryland

June 13, 1888

Appeal from circuit court, Cecil county.

Bill by Hugh F. Scarborough against Samuel Scotten and others executors of William Scotten, to compel a surrender of certain notes and bills placed in the hands of the deceased in his life-time. The bill was dismissed on demurrer, and plaintiff appeals.

Argued before ALVEY, C.J., and MILLER, BRYAN, STONE, MCSHERRY, and IRVING, JJ.

R C. Thackery and L. M. Haines, for appellant.

Albert Constable and W. T. Warburton, for appellees.

IRVING J.

This appeal is from a decree of the circuit court of Cecil county sustaining a demurrer to the appellant's bill in equity, and dismissing the same. The appellant's bill charges that in the year 1880, being the owner of certain promissory notes and single bills, and desiring to have the same collected, he indorsed and delivered the same to William Scotten, the defendants' testator, with the understanding and agreement that he (William Scotten) would collect the same, from the persons owing the promissory notes and single bills, and would pay over the amount so collected to Francina Scarborough, the wife of the appellant; that this agreement was made with the defendants' testator verbally at the time the promissory notes and bills were indorsed to him. The bill then avers that, after such indorsement and delivery, William Scotten died without having collected any of the notes and bills so indorsed to him, leaving a will by which the defendants were appointed executors, and who have duly qualified as such; that they have, as executors, those promissory notes and single bills now in their possession; that Francina Scarborough, appellant's wife, to whom the proceeds were to be paid when collected, has assigned to the complainant all her interest in the same and their proceeds; that the defendants have not collected the same, nor made any effort to collect the same, and that their inaction is for the purpose of delaying and hindering the complainant in the collection of and receipt of the money due him thereon; that the complainant has demanded of the executors the delivery of the notes and single bills to him, but the defendants have refused, and still refuse, to surrender the same. The bill then charges that the complainant is without adequate remedy at law, and prays for a decree requiring the surrender of the promissory notes and single bills, copies of which are filed with the bill, and for such other relief as his case may require. By the demurrer, of course, all the facts alleged are admitted, and the only question for us to decide is whether the bill makes a case for equitable interference.

In sustaining the demurrer and dismissing the bill the learned judge of the circuit court simply says: "I am of opinion that the bill presents a case where the plaintiff has a certain, adequate, and complete remedy at law. Buzard v. Houston, 119 U.S. 347, 7 S.Ct. 249; Winner v. Penniman, 35 Md. 163." In this view we do not concur. Judge Story, in his Equity Jurisprudence, (volume 2, 13th Ed. § 703,) says that a court of equity will render remedial justice by decreeing the delivery up of deeds and other instruments of writing to those who are entitled to them. That learned author says it is a very ancient "head of equity jurisdiction." In the same section last cited he says "The same doctrine applies to other instruments and securities, such as bonds, negotiable instruments, and other evidences of property, which are improperly withheld from persons who have an equitable or legal interest in them, or who have a right to have them preserved. * * * It is true that an action of detinue, or even of replevin, might in some few cases lie, and give the proper remedy if the thing could be found. But generally, in actions at law, damages only are recoverable; and such a remedy, in most cases, would be wholly inadequate." Lord HARDWICKE, in Jackson v. Butler, 2 Atk. 306, decreed the surrender of a mortgage by a pawnee of it, who had received it from a person who had received it from the owner for the purpose of collecting the interest due on it, and has violated his duty and pawned it. In many other cases the principle had been applied. Duke of Somerset v. Cookson, 1 Lead. Cas. Eq. (Hare & W.) 771-775; Fells v. Read, 3 Ves. 70; Nutbrown v. Thornton, 10 Ves. 163. There can be no doubt that the true ground of interference by a court of equity is the inadequacy of any legal remedy to give full relief. That is the test. In this case the court below thought the remedy at law was full and adequate; and the court relies on Penniman's Case, 35 Md. 163, and Buzard v Houston, 119 U.S. 347, 7 S.Ct. 249. In the first-mentioned case this court decided that trover would lie in favor of one joint owner of a note against another joint owner who surrendered it to maker for cancellation. The plaintiff saw...