Central National Bank v. Stevens, 169 U.S. 432 (1898)
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Central National Bank v. Stevens
No. 38
Argued October 15, 1897
Decided March 7, 1898
169 U.S. 432
ERROR TO THE COURT OF APPEALS
OF THE STATE OF NEW YORK
Syllabus
In August, 1880, Sackett brought suit in the Supreme Court of the New York on behalf of himself and all other holders and owners of bonds of certain railroad companies against Root, the Harlem Extension Railroad South Coal Transportation Company, the New York, Boston and Montreal Railway Company, and David Butterfield, receiver of said company, praying for the appointment of a receiver and for a sale of the railroad and franchises for the benefit of the bondholders. On October 11, 1880, a receiver was appointed and qualified. On April 2, 1881, on petition of the receiver and after a report by an expert disclosing the necessity for expenditure to make the road safe and to enable trains to be run, an order was made by the court authorizing the receiver to issue and negotiate $350,000 in certificates, the same to be a first lien. The certificates were sold, and the proceeds expended under the approval of the court. On June 12, 1885, sale was made of the road and deed delivered to Foster and Hazard for $155,000, subject to the payment of the unpaid portion of the principal and interest of the certificates. On April 9, 1886, the Central National Bank of Boston brought suit in the supreme court of New York, on its own behalf and that of others as owners of the certificates, against Foster, Hazard, the New York, Rutland and Montreal Railway Company, and the American Loan and Trust Company. On March 24, 1887, the suit having been transferred on the petition of the defendants to the Circuit Court of the United States, after full hearing and argument, the latter court rendered a final decree establishing the rights of the Central National Bank of Boston and of others as owners of said certificates, declaring the latter to be a first lien, decreeing, that Foster and Hazard were liable for any deficiency if the sale should fail to realize enough. to pay certificates. On March 23, 1892, sale under said decree to Foster for $7500, and on April 25, 1892, deed of conveyance by referee to Foster, were made. On December 8, 1890, Stevens and others brought their suit in the supreme court of New York against the Central National Bank of Boston, the other holders of certificates, Foster, Hazard and others, to set aside the decree in Sackett’s case and to enjoin proceedings in the Circuit Court of the United States. November 11, 1891, judgment setting aside the sale in Sackett’s case and finally enjoining the Central National Bank and others, plaintiff’s in the Circuit Court of the United States, from selling under the decree of the federal court. On May 16, 1892, sale and conveyance were made by referee under the decree in the present suit to Foster. On May 9, 1893, judgment of the general term was rendered, and November 27, 1894, judgment of the Court of Appeals, each affirming the judgment of the Supreme Court, held that the judgment of the supreme court of New York and of the Court of Appeals affirming the same are erroneous insofar as they command the Central National Bank of Boston, the Massachusetts Mutual Life Insurance Company and other holders of the receiver’s certificates whose rights, as such holders, were adjudged by the Circuit Court of the United States, to appear before the referee appointed by the Supreme Court in the present case, .and which enjoin the Central National Bank of Boston and others, whose rights have been adjudged by the Circuit Court of the United States for the Northern District of New York, from proceeding with the sale under the decree of that court.
The Lebanon Springs Railroad Company was organized in the year 1852, and by virtue of various acts of the Legislatures of New York and Vermont was authorized to construct and maintain a railroad extending from Chatham, New York, to Bennington, Vermont. On 1st day of July, 1867, the said company duly executed and delivered to the Union Trust Company of New York a mortgage of that date on all its property, rights, and franchises, to secure the payment of bonds to the amount of two million of dollars, which bonds were then or soon after sold to a great number of persons. In January, 1870, the Lebanon Springs Railroad Company consolidated with the Bennington and Rutland Railroad Company under the name and style of the Harlem Extension Railroad Company. The new company, on April 1, 1870, executed and delivered to the said Union Trust Company a mortgage on its road and franchises to secure bonds to the amount of $4,000,000. Of these bonds, there were sold to outside parties to the amount of $1,500,000. The remaining $2,500,000 of bonds were reserved to take up and be exchanged for the $2,000,000 of bonds of the Lebanon Springs Railroad Company and for $500,000 of bonds which had been issued by the Bennington and Rutland Railroad Company, but such exchange never took place, and accordingly only $1,500,000 of the said bonds of the Harlem Extension Railroad Company were ever issued. Both said mortgages were duly recorded in the proper counties in the states of New York and Vermont.
On February 22, 1872, the interest upon the said bonds of the Lebanon Springs Railroad Company falling due after January, 1869, not having been paid, the Union Trust Company of New York began an action in the supreme court of New York to foreclose the mortgage of that company, in which action the Lebanon Springs Railroad Company and the Harlem Extension Railroad Company were made defendants.
On November 15, 1872, the Union Trust Company of New York filed bills in the Court of Chancery in the State of Vermont to foreclose both of said mortgages, in which actions the Lebanon Springs Railroad Company and the Harlem Extension Railroad Company were made defendants, and said defendants duly appeared in that court prior to December 1, 1872.
While the above-mentioned actions were pending, and on December 18, 1872, the Harlem Extension Railroad Company and the Pine Plains and Albany Railroad Company, a corporation of the State of New York, consolidated their roads, property, and capital stock under the name of the Harlem Extension Railroad Company, and on December 19, 1872, the New York, Boston and Northern Railroad Company and the said last named the Harlem Extension Railroad Company duly consolidated their roads, property, and capital stock, and thus formed one company under the name of the New York, Boston and Montreal Railway Company.
The above-mentioned foreclosure suits were so proceeded with that in the said action in the supreme court of New York, a judgment of foreclosure of the said mortgage given by the Lebanon Springs Railroad Company, and for a sale of its road, property, and franchises within the State of New York, and of all its right, title, and interest to the railroad and franchises within the State of Vermont, was rendered on December 10, 1872, and on January 25, 1873, the property and franchises mentioned were sold to one William Butler Duncan for the price of $100,000, and on said day Charles S. Fairchild, the referee appointed by the court to effect the sale, executed and delivered to one James C. Hull his deed of conveyance of the said road, property, and franchises bearing date the said 25th January, 1873, and said deed was duly recorded in the clerks’ offices for the Counties of Renesselaer and Columbia.
On the 7th day of December, 1872, decrees of foreclosure of the mortgage of the Lebanon Springs Railroad Company and of the Harlem Extension Railroad Company’s mortgage, and directing a sale, were rendered, and in pursuance of such decrees, the said road, property, and franchises within the State of Vermont were, by Daniel McEwen, a special master in chancery, appointed by the court for that purpose, sold on January 20, 1873, to one Charles G. Lincoln for the sum of $50,000, and deeds of conveyance of that date were made and delivered to said Lincoln by the said master in chancery.
On January 28, 1873, Hull and Lincoln, the respective purchasers at the said foreclosure sales, executed and delivered to the said William Butler Duncan and to one Trevor W. Park a bond in the sum of $5,000,000, and a mortgage to secure the same on all the roads, property, and franchises of the Harlem Extension Railroad Company, including those of the Lebanon Springs Railroad Company and of the New York and Vermont Railroad Company.
On January 30, 1873, Hull and wife, by their deed, executed and delivered that day, conveyed all said roads, property, and franchises situated in the State of New York to the said the New York, Boston and Montreal Railway Company, subject, however, to said mortgage to Duncan and Park; and on the same day Lincoln, by a deed executed and delivered by him, conveyed said roads, property, and franchises situated in the State of Vermont to the said the New York, Boston and Montreal Railway Company, subject to the said mortgage to Duncan and Park, and to the said $500,000 mortgage on the old Bennington and Rutland Railroad.
The New York, Boston and Montreal Railway Company paid the sum of $807,077.05 on account of the moneys due on said bond and mortgage, which had become wholly due and payable on or before February 1, 1875, but has never paid the remainder of the money due on said bond and mortgage.
On March 15, 1873, the New York, Boston and Montreal Railway Company executed and delivered a certain other mortgage in the amount of $12,250,000 to Seligman, Sherman, and Brown as trustees. This mortgage covered the above-mentioned railroad and other properties. On the 1st day of April, 1873, the New York, Boston and Montreal Railway Company executed and delivered still another mortgage on the said railroad and other things in the amount of $12,750,000, in which the New York Loan and Indemnity Company was named as trustee. Enough of the bonds of the said last two mortgages were sold to realize $6,000,000, which were received and disbursed by Seligman and Brown. The said railroad was operated by and on behalf of the New York, Boston, and Montreal Railway Company until sometime in November, 1873, when said company leased the road to the Central Vermont Railroad Company, by which it was operated until August 20, 1877, when said last-mentioned company withdrew from the possession of and abandoned the road. In the meantime, the New York, Boston and Montreal Railway Company had failed to fulfill its obligations, and had become wholly insolvent, and said railroad, when surrendered and abandoned by its lessee, lay unoccupied and unoperated until some time in September, 1877, when it was taken possession of by one Russell C. Root, who subsequently, in November, 1877, delivered possession thereof to a corporation called the Harlem Extension Railroad South Coal Transportation Company, a corporation of the State of New York, and of which said Root was president, and which continued to operate said railroad until it came into the possession of John W. Van Valkenburgh as hereinafter stated.
On September 7, 1889, one Marvin Sackett, claiming to be the owner of bonds to the amount of $8,700, issued, as before mentioned, by the Lebanon Springs Railroad Company, brought an action in the supreme court of New York against the said Russell C. Root, the Harlem Extension Railroad South Coal Transportation Company, the New York, Boston and Montreal Railway Company, and Daniel Butterfield, as receiver of the said last-mentioned company, praying for the sale of the whole of the said railroad property and franchises. He claimed to bring the action in behalf of himself and all others, bondholders of the Lebanon Springs Railroad Company, similarly situated, who held any of the $2,000,000 of the bonds of said company. He alleged in his complaint the fact of the mortgage, to secure his bonds, among others to the Union Trust Company of New York, its actions to foreclose the sales under them, the aforesaid sales to Hull and Lincoln, and their mortgage to Park and Duncan, and the conveyance by the latter to the New York, Boston and Montreal Railway Company, and that Hull and Lincoln and Park and Duncan acted throughout all those matters as the agents and representatives, and for the use and benefit, of the bondholders of the Lebanon Springs Railroad Company.
The summons and complaint were served upon the New York, Boston and Montreal Railway Company and upon Butterfield as receiver, but they did not appear. Russell C. Root and the Harlem Extension Railroad South Coal Transportation Company were also served, and they put in joint answers on September 25, 1880. On October 1, 1880, the complainant Sackett moved for the appointment of a receiver, and on October 7, John W. Van Valkenburgh was appointed and filed his bond as receiver.
On November 12, 1880, one Bloodgood and six others, claiming to own a majority of the bonds of the Lebanon Springs Railroad Company, moved for leave to be made parties to the action. This motion was, on January 10, 1881, denied, but the plaintiff was directed to serve papers and notices of every kind on one F. L. Westbrook, who was, by the order, authorized to appear as counsel of the said Bloodgood and the other six bondholders upon all trials, hearings, and motions. On November 6, 1880, Park and Duncan made an application to the court to be made parties to the action, alleging that they were the owners of over $300,000 of bonds of the Lebanon Springs Railroad Company, and of over $600,000 of bonds of the Harlem Extension Railroad Company, and that they were the mortgagees under the mortgage made by Hull and Lincoln. This application was not granted. One Henry A. Tilden, who claimed to own thirty of the bonds of the Lebanon Springs Railroad Company, was associated with Sackett in the bringing of said action, and appeared by counsel. On October 11, 1880, the receiver filed a petition setting forth that he had no funds with which to equip or operate the road, and asking that he might be allowed to borrow $25,000 on certificates for that purpose, and on October 25, 1880, the court made an order authorizing the receiver to borrow $25,000 on certificates, which were declared to be a first lien of the net profits of the railroad company. On February 23, 1881, the receiver filed a petition setting forth that there were large arrears of taxes, for which sales had taken place of portions of the road, that there was a necessity for the purchase of rails and superstructures, and praying that he might be authorized to issue certificates to raise the necessary moneys to redeem such portions of the road as had been sold for taxes, and to purchase rails, and make other necessary repairs. Notice of this petition was filed on Hamilton Ward, Attorney General of the State of New York; on McClellan and Brown, attorneys for Sackett, the plaintiff; on P. W. Ostremder, attorney for R. C. Root, defendant, and on F. W. Westbrook, attorney designated to receive notices on behalf of Bloodgood and others.
On March 5, 1881, the court, after hearing Edward Newcomb, of counsel for said receiver, and F. L. Westbrook, of counsel in opposition thereto, appointed James H. Jones, an expert, to examine the rails, ties, bridges, roadbed, trestles, telegraph poles, and all matters pertaining to the running of the Lebanon Springs Railroad, to the end that he should make a report to the court of the true condition of the Lebanon Springs Railroad, with his opinion thereon as to what was necessary and requisite for the protection of said property and the safety and successful running of said railroad; that said report be made to said receiver, and that said receiver should return said report, together with a detailed statement of moneys received and expended by him, with such other information he should have in relation to said railroad, and further directing that said reports and papers should be served on F. L. Westbrook ten days prior to the hearing on said report before the court.
On March 19, 1881, James H. Jones made an elaborate report to the receiver, stating that he had, in pursuance of his appointment, made a careful examination of the said railroad, its rails, ties, bridges, roadbed, trestles, telegraph poles, and all matters appertaining to the running and management thereof; that he found the rails of iron worn to such an extent as to render the running of trains, even at an ordinary rate of speed, extremely dangerous; that to render the track safe for ordinary use would require from 2,500 to 3,000 tons of new rails to replace the poorer conditioned of the old ones; that the ties were badly decayed, to replace which would require about 87,000 new ties; that the road required new ballasting; that the bridges and trestles were in an unsafe condition, all needing repair; that to repair the bridges and trestles and abutments would require an expenditure of some $19,000; that new telegraph poles to the number of 2,030 were required; that, in fine, to put said road in a condition to render its operation safe and successful, would require about $320,000. This report was returned to court by the receiver, with a statement of his receipts and expenditures to date, and on April 4, 1881, the court, after considering said reports, and hearing counsel for the receiver, and no one appearing in opposition thereto, ordered the receiver to put said road in repair as recommended by the report of James H. Jones, and authorized him to issue receiver’s certificates, dated April 2, 1881, with interest at six percent, for the aggregate amount of $350,000, the same to be signed by said John W. Van Valkenburgh, as receiver of said Lebanon Springs Railroad Company, and a certificate on each thereof duly to be signed by an officer of the Farmers’ Loan and Trust Company of New York City. It was further ordered that the said receiver should negotiate said certificates, and with the money arising therefrom pay and discharge the $25,000 of certificates theretofore authorized by the order of October 25, 1880, and to purchase all necessary materials for the repairs of said road, and pay and discharge all necessary expenses incident to said repairs. It was further ordered that said receiver’s certificates of indebtedness should be declared to be a debt of the receiver incurred for the benefit and protection of said Lebanon Springs Railroad and its owners and the bondholders thereof, and said certificates were declared and decreed to be a first lien on the railroad and every kind of property owned by the company, to be recognized as such in any reorganization of the company, or in its consolidation with any other company; and, in case of any sale of the said railroad, the property in the hands of the receiver, and the franchises, under any decree of the supreme court, the said certificates are to be first paid from the first moneys realized thereupon by the receiver, unless sooner paid and cancelled by him from the earnings of the railroad; but, in case said railroad and property in the hands of the receiver, and franchises, on any sale thereof, does not bring sufficient to pay the full amount and interest then due on the outstanding negotiated certificates, then such unpaid amount shall remain as a first lien on the road, property, and franchises in the hands of the purchaser.
On January 12, 1885, a final decree of sale was made, appointing George McClellan as referee to make such sale, and providing, among other things, that sale should be made subject to the payment of the undue principal and interest of the receiver’s certificates, and that the purchaser of the railroad and franchises should take said railroad, property, and franchises, subject to the unpaid portion of said certificates which should be assumed by such purchaser as part of the consideration of the purchase.
On June 29, 1885, George McClellan, the referee, reported to the court that he had effected sale, in accordance with the terms of the decree of sale, to one William Foster, Jr., trustee, for the sum of $155,000, and that among the terms of the sale it was stipulated that William Foster Jr., trustee, should take the property and assets, subject to the payment of the undue principal and interest of the receiver’s certificates.
Subsequently, the referee executed and delivered to William Foster, Jr., and Rowland N. Hazard, as purchasers, a deed of conveyance, and received from them $155,000, the amount of their bid, and it appears that out of the amount of said purchase money there was then paid about $60,000, the interest then due on said certificates. Afterwards, it appears by the record that Foster and Hazard conveyed the railroad, property, and franchises to the New York, Rutland, and Montreal Railway Company, to which company Reynolds, who had succeeded Van Valkenburgh as receiver, surrendered possession of the railroad. The balance of the purchase money was used and applied as directed by the judgment in the said Sackett suit.
The principal of said certificates became due on the 1st day of April, 1886, and was not paid. Thereupon, in the month of April, 1866, the Central National Bank of Boston brought an action in the supreme court of New York in behalf of itself as well as other holders of receiver’s certificates against William Foster, Jr., Rowland N. Hazard, the New York, Rutland and Montreal Railway Company and the American Loan and Trust Company of New York. All of the defendants in said action appeared and answered. After issue was joined, the said action was, on the petition of the defendants, duly removed into the Circuit Court of the United States for the Northern District of New York.
The complaint alleged in substance that the plaintiff is a banking association duly organized and incorporated under the laws of the United States, located and doing business in the City of Boston, in the Commonwealth of Massachusetts. It alleged the making of an order on or about April 2, 1881, by the New York supreme court in the Sackett suit whereby one John W. Van Valkenburgh, as receiver of the Lebanon Springs Railroad Company, was authorized and directed to issue under his hand receiver’s certificates of indebtedness, dated April 2, 1881, with interest at six percent, of $500 each, payable in five years, interest payable January 1 and July 1 in each year, to the aggregate amount of $350,000, such certificates and the interest coupons thereto attached made payable at the Farmers’ Loan and Trust Company in the City of New York, and whereby it was further ordered that the receiver negotiate said certificates to the amount aforesaid, and with the moneys arising thereupon pay and discharge certain previous certificates theretofore authorized by an order of the same court, and from the moneys arising from said certificates that said receiver purchase all necessary materials for the repairs of said railroad, and to pay and discharge all necessary expenses incident to the repairs thereof, and all other expenses attending the running and successful managing and operating of said railroad, together with such indebtedness as might be found due to claimants by the referee named in said order; that it was further provided in said order that the said receiver’s certificates of indebtedness to the amount therein directed to be issued be, and the same were thereby, declared to be a debt of the said receiver, incurred for the benefit and protection of the said Lebanon Springs Railroad and its owners and bondholders, and said certificates to the amount of $350,000 were by said order declared to be a first lien on the railroad, and all and every kind of property owned by said railroad company, or in the possession of the receiver thereof, and that said certificates were to be recognized as such in any reorganization of the company, and that in case of any sale of the railroad, the property in the hands of the receiver and franchises under any decree of the supreme court, said certificates were to be first paid from the first moneys realized therefrom by said receiver, unless sooner paid and cancelled by him from the earnings of said railroad. It was further provided in said order that in case said railroad property in the hands of the receiver, and franchises, on any sale thereof should not bring sufficient to pay the full amount of principal and interest then due on the outstanding negotiated certificates in said order authorized to be issued, then the purchaser of said railroad and the property in the hands of the receiver, and franchises, should assume, as a first lien thereon, so much of said principal as at that time should remain outstanding and unpaid, with interest thereon, referring to the original order or the record thereof.
The complaint further alleges that the said Van Valkenburgh, as receiver, under and in pursuance of said order, did issue and negotiate such certificates of indebtedness in the manner and form by said order provided to the amount of $350,000, and that he duly applied the moneys received from said certificates to the uses and purposes mentioned and in said order authorized; that the plaintiff is now, and has for several years last past been, the owner and holder of said certificates, amounting in the aggregate to $250,000 of principal thereof, and that the certificates issued and negotiated by the receiver which are not held by plaintiff are held by divers persons and corporations, many of whose names are unknown to the plaintiff.
The complaint further alleges that in the said Sackett suit the plaintiff appeared by its attorneys on the trial of the issues, and made proof in regard to the issuing of said certificates, and its title thereto, and that such proceedings were had therein that a judgment was rendered on or about January 12, 1885, by which it was, among other things, adjudged and decreed that the said certificates, amounting in the aggregate to $350,000, were ratified and confirmed, and declared to be a first lien on the railroad and its property, as provided in the said order, for the amount of principal and interest unpaid thereon, subject to the payment of certain costs and expenses in said judgment provided for, and whereby it was further adjudged and decreed that the property, franchises, and rights of the said railroad company as described in a certain mortgage therein referred to, and in the judgment in said Sackett suit, and all the right, title, and interest of any and of all the parties to the said action, including all property and assets in the hands of said receiver, be sold at public auction under the direction of a referee therein named, for the benefit of the first mortgage bondholders of said railroad company, issued July 1, 1867, for the amount of $2,000,000, and that said sale be made subject to the payment of the undue principal and interest of the said receiver’s certificates, and that the purchaser or purchasers of said railroad property and franchises should take the said railroad property and franchises subject to the unpaid principal and interest on the said receiver’s certificates, and should assume, as part of the consideration of the purchase, the payment thereof, and from the avails of said sale, after the payment of certain expenses therein provided for, the said referee should pay the amount of interest due on said receiver’s certificates; that, under and in pursuance of said judgment, the referee named therein did advertise for sale on the 12th day of June, 1885, and did sell at public auction, the premises, rights, franchises, and property in said judgment mentioned and described to the defendants William Foster, Jr., and Rowland N. Hazard, who became the purchasers thereof for the price of $155,000, and that the said William Foster, Jr., acting on behalf of himself and said Hazard, did pay the referee five percent of the purchase price, and did subscribe a certain contract of sale, which was also subscribed by said referee, whereby, among other things, he did, for himself and said Hazard, assume and agree to pay the amount of said principal and interest on said certificates of indebtedness as part of the consideration of said purchase; that the balance of said $155,000 was thereafter paid by the purchasers to the referee, and that the referee did thereafter duly execute and deliver to the defendants Foster and Hazard a deed of said premises and property in said judgment described, and paid from the said $155,000 the interest then due on said certificates, amounting to about $60,000.
Plaintiff further alleged in said complaint that said referee’s deed was duly accepted by the defendants Foster and Hazard, and that in and by the deed the grantees therein, the defendants Hazard and Foster, took said premises and property subject to the unpaid principal and interest on the receiver’s certificates, as required by the judgment aforesaid; that the principal of said certificates, with interest from January 1, 1886, became due and payable on the second day of April, 1886, and that, on that day, the said certificates, amounting to $250,000, held by the plaintiff, were duly presented to the Farmers’ Loan and Trust Company of the City of New York, where the same were payable, and payment thereof was demanded, but the same was refused, and that the whole of said principal, with interest from the 1st day of January, 1886, is now due and unpaid. The complaint then gives a description of the railroad premises mentioned in the judgment in the Sackett suit and in the referee’s deed; alleges that the defendants, or some of them, are now in possession of the property above described, and are using and operating the same for railroad purposes, and that all the defendants have or claim to have some interest in or lien upon said premises or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said certificates, and that there is now justly due the plaintiff upon said certificates held by it the sum of $250,000, with interest from January 1, 1886.
The complaint then prays that the unpaid principal and interest of said receiver’s certificates may be adjudged to be a lien upon said premises; asks for the usual judgment of foreclosure, for a receiver, and for a sale, and that out of the moneys arising from the sale of said premises plaintiff and other holders of said certificates, who may come in and prove their title thereto and the amount due thereon, may be paid the amount due on said certificates, with interest and costs, so far as the amount of such moneys properly applicable thereto will pay the same, and that the defendants Hazard and Foster may be adjudged to pay any deficiency that may remain after applying said moneys so applicable thereto, and for general relief.
The defendants all appeared and answered. Hazard and Foster answered separately, admitting their purchase substantially as alleged in the complaint, controverting some of the other allegations, and setting up as a distinct defense that they acquired the property mentioned in the plaintiff’s complaint, with notice that the receiver’s certificates were outstanding, and of the sum justly due therefor, and that they have ever since been, and now are, ready and willing to pay the sum justly due on account of said receiver’s certificates, but that they are advised and believe that the plaintiff is not entitled to receive payment thereof; that when the said property came into the hands of these defendants, it was subject to a lien for the amount actually due from the receiver and his successor in the trust for the amount of said receiver’s certificates, but for no other or greater amount, and that these defendants, when they acquired the property, succeeded to all the rights of the prior owners of the property, as well as to their obligations; that in accepting the deed of the premises, they intended only to obligate themselves to pay the amount actually due from the receiver on account of such certificates, with proper interest, and no other or greater sum by way of profit, and defendants aver that they incurred no greater or other obligations in the premises.
The defendant the New York, Rutland and Montreal Railway Company also put in a separate answer. It alleged, among other things, that defendants Foster and Hazard had conveyed and transferred to it all the property and franchises conveyed to them by the referee in the Sackett suit, subject to the payment of the sum justly due by said receiver, but not subject to any greater sum, and it controverts the allegations as to the amounts due on the receiver’s certificates.
The American Loan and Trust Company also answered separately, setting up that it was the holder of a mortgage executed to it by the New York, Rutland and Montreal Railway Company, and denying knowledge or information as to the matters charged in the bill.
The case came on for a hearing on pleadings and proofs, and after full argument, on March 24, 1887, a decree was passed, of which the following is a copy (omitting the description of the property, which is the same as that contained in the complaint in this action):
It was ordered, adjudged, and decreed as follows:
That the certificates of indebtedness issued by John W. Van Valkenburgh, as receiver of the Lebanon Springs Railroad Company, under and in pursuance of an order of the Supreme Court of the State of New York bearing date the second day of April, 1881, made in an action in said supreme court wherein one Marvin Sackett was plaintiff and Russell C. Root and others were defendants, amounting in the aggregate to $350,000, are a lien upon the premises and property described in the bill of complaint herein, in the hands of the defendants herein, and of any persons claiming through or under the defendants Rowland N. Hazard and William Foster, Jr., the purchasers of said premises and property at a sale thereof made under and in pursuance of the judgment rendered in said action in said supreme court on or about the 12th day of January, 1885, and that the complainant the Central National Bank of Boston is the holder and owner of certain of said certificates, amounting in the aggregate to $250,000 of principal thereof, upon which there is now due and unpaid to the complainant the said sum of $250,000, with interest at the rate of six percent per annum thereon from the first day of January, 1886.
That it be referred to William Lansing, Esq., of the City of Albany, who is hereby appointed a master
pro hac vice in this cause to examine, ascertain, and report who are the holders, other than the complainant, of said certificates of indebtedness, and how much remains due and unpaid thereon. And the said master is hereby authorized and directed to give notice by advertising in two daily newspapers published in the City of Albany, in said district, requiring the holders of said certificates to produce the same before the said master at his office in the City of Albany at such time as he shall designate (which shall be at least twenty days after the first publication of said notice), and make proof as to their title thereto, and the amount due thereon, and the said master is also authorized and directed to inquire, ascertain, and report what would be the just proportion and amount for the said other holders of said certificates to contribute to the expenses of this suit.
That the premises and property described in the bill of complaint in this cause, as hereinafter set forth, or such part thereof as is sufficient to satisfy the amount due and unpaid on said certificates, and expenses of sale and the costs of this suit, and which may be sold separately without material injury to the parties interested, be sold at public auction in the County of Renesselaer, in said district, by or under the direction of Worthington Frothingham, Esq., who is hereby appointed a referee for said purpose; that the said referee give public notice of the time and place of such sale according to law and the practice of this court; that the complainant or any other party to this suit may become a purchaser on such sale; that the said referee execute to the purchaser or purchasers a deed or deeds of the premises and property sold; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, the said referee pay to the complainant or its solicitors the amount of its costs and disbursements to be taxed herein; that he also pay to the complainant or its solicitors the amount due to it on said certificates as aforesaid, together with the interest thereon from the first day of January, 1886, and that he pay to the holders of the other said certificates respectively the amount of principal and interest due thereon, as the same may be found and reported by the said master as aforesaid; but if the moneys arising from such sale, after the payment of said costs and expenses as aforesaid, shall not be sufficient to pay the said certificates, with interest in full, then that the said referee pay and distribute the said moneys, after the payment of the fees, expenses, costs, and disbursements above mentioned, to the said certificate holders, including the complainant,
pro rata, in proportion to the amount of principal and interest due to said certificate holders respectively; that the said referee bring the surplus moneys arising from the said sale, if any there shall be, into court within twenty days after the same be received, to be there subject to the order of the court; that the said referee make a report of such sale, and file the same with the clerk of this court with all convenient speed; that, if the proceeds of such sale be insufficient to pay the amount due to the complainant as aforesaid, with interest and costs as aforesaid, and also to pay the other certificate holders the amount due to them respectively, as may be ascertained by said master as aforesaid, the said referee specify the amount of such deficiency in his report of sale, and that the defendants Rowland N. Hazard and William Foster, Jr., pay to the complainant, and to the other of said certificate holders, the residue of the indebtedness on said certificates remaining unsatisfied after the sale of said property and the application of the proceeds pursuant to the directions contained herein, and that the complainant and the other of said certificate holders, to be ascertained as aforesaid, have execution thereof, and that the purchaser or purchasers at such sale be let into possession on the production of the said referee’s deed and a certified copy of the order or decree confirming the said referee’s report of sale.
And it is further ordered, adjudged, and decreed that the defendants and all persons claiming under them, or any or either of them, after the filing of the notice of pendency of this suit, be forever barred and foreclosed of all right, title, interest, and equity of redemption in the said premises so sold, or any part thereof. The following is a description of the premises and property hereinbefore referred to and thereby directed to be sold, as contained in a certain mortgage made by the said the Lebanon Springs Railroad Company to the Union Trust Company, and which were conveyed by the deed executed by George McClellan, referee, to the defendants William Foster, Jr., and Rowland N. Hazard, referred to in the bill of complaint herein.
[Description.]
Leave is hereby reserved to the complaint and to the other certificate holders above referred to, or any of them, to apply upon the foot of this decree for the appointment of a receiver to take immediate possession of the property above described, and to keep the same until the sale under this decree shall be consummated by the delivery to the purchaser or purchasers at such sale of a referee’s deed or deeds, and to deliver the property so sold to such purchaser or purchasers, with the powers usually possessed by receivers in such cases.
Subsequently, in pursuance of the decree, the holders of the certificates appeared before the special master and made proof of their ownership thereof, and said master, on February 7, 1888, made a report accordingly, finding the names of the holders thereof and the amounts due them respectively.
On March 23, 1892, in pursuance of an order of sale made by the said circuit court of the United States, Worthington Frothingham, as referee, sold the said premises and property described in the complaint (and described in the deed of George McClellan, referee, to Foster and Hazard) to William Foster, Jr., for the sum of $7,500, and on April 25, 1892, executed and delivered a deed therefor to the said William Foster, Jr.
On December 8, 1890, Aaron R. Stevens, Harper W. Rogers, Nancy E. Wilbur, Andrew A. Douglas, as trustee under the will of W. H. Douglas, deceased, and Ida S. Harrison, for themselves and other holders and owners of bonds issued by the Lebanon Springs Company and the Harlem Extension Railroad Company, filed a petition or bill of complaint in the supreme court of New York against the Union Trust Company of New York; James C. Hull; William Butler Duncan; John G. McCullough, as administrator of the goods, chattels, and credits of Trevor W. Park, deceased; the New York, Boston and Montreal Railway Company; Jesse Seligman; John Crosby Brown; William Watts Sherman; Daniel Butterfield, as receiver of the property of the New York, Boston and Montreal Railway Company; Marvin Sackett; Russell C. Root; the Harlem Extension Railroad South Coal Transportation Company; the Central National Bank of Boston; Peter Butler, as receiver of the property of the Pacific National Bank of Boston; the Massachusetts Mutual Life Insurance Company, and others.
In this petition there is a history of the Lebanon Springs Railroad Company and the Harlem Extension Railroad Company, and of the several legal proceedings whereby the roads, property, and franchises of these companies became vested in the New York Rutland and Montreal Railway Company, which is substantially the same with that heretofore made in this statement. But the petition assailed the action brought by Sackett in 1880, and which resulted in the sale to Foster and Hazard in 1885, as fraudulent and collusive, and alleged that
the suit by Sackett was brought and conducted not with the intention of realizing the said property for the benefit of the bondholders, or any of them, or of himself as bondholder, but collusively, and with the intent that he and others should receive large sums of money from the said property under color of the payment of claims, which, even if valid, were subordinate to said mortgages, and with the intent that said railroad and property should be acquired by others free from the lien of said mortgages, and without realizing anything to the holders of said bond.
The petition further alleged that:
Afterwards, the defendant the Central National Bank of Boston, claiming to own such certificates to the amount of two hundred and fifty thousand dollars, stated at par of the principal of the same, brought an action in this Court against the defendants Foster and Hazard, the New York, Rutland and Montreal Railway Company, and the American Loan and Trust Company; that in that action, the plaintiff prayed for the sale of the said railroad and property for the satisfaction of the certificates; that said action was removed into the circuit court of the United States, and such proceedings have been had therein that a decree has passed whereby it is provided that the said railroad and property be sold by a master of that court for the payment of the said certificates.
The prayers for relief were as follows:
1. That it may be adjudged that the owners of the bonds issued by the Lebanon Springs Railroad Company have a first lien upon the said railroad and property, and the owners of the bonds issued by the Harlem Extension Railroad Company a second lien thereon, in preference of all others. That the bond and mortgage executed by the defendants Hull and Lincoln to the defendant Duncan and the said Park is held for the benefit of the owners of said bonds, and represents their interest solely, and that defendants Brown and Seligman redeliver the same.
2. That the judgment in the action brought in this court by the defendant the Union Trust Company, and the decrees in the two actions brought by that company in the Court of Chancery of Vermont, be now specifically enforced, and the mortgage by the said Hull and Lincoln be now foreclosed, and that the said railroad and property be sold under said judgments and decrees, and said mortgage of Hull and Lincoln, for the benefit of this plaintiff and all other of the owners of the Lebanon Springs and Harlem Extension bonds, and that all of the defendants in this action be barred and foreclosed of all right, title, interest, and equity of redemption of, in, and to the said railroad and property, and any part of the same.
3. That it may be adjudged that the certificates issued by the said Van Valkenburgh were beyond the power of this court to issue, and are of no validity except to bind the interest represented by the eight bonds of the said Marvin Sackett, and the interests of the defendants in the action brought by said Sackett.
4. That all of the defendants in this action and all other persons be enjoined, as well temporarily by order as permanently by judgment, from interfering with any part of the said railroad or property.
5. That a receiver be appointed, with the usual powers of receivers, to take possession of, preserve, and operate said railroad and property until further order of the court.
6. That the plaintiffs have such other and further relief as to the court shall seem just, besides costs.
To this petition the Central National Bank of Boston filed its separate answer in which, after admitting certain allegations in the petition relative to the history of the railroad companies, the said defendant set forth the proceedings in the suit of Sackett, including the appointment of Van Valkenburgh as receiver, the authority given such receiver by the court to issue and negotiate the said certificates, and the purchase by the defendant of $250,000 of said certificates for full value. The answer further alleged, in response to the petition, that the suit was brought by Sackett for himself as bondholder and on behalf of all other bondholders; that other bondholders, representing all, or nearly all, the bonds issued by the Lebanon Springs Railroad Company, had knowledge of the pendency of said suit by Sackett, and were represented by attorneys and counsel, although not nominally made parties to the action; that Foster and Hazard became purchasers at the sale, and that, by the terms of the sale, they had assumed the payment of the unpaid portion of said certificates as part of the consideration of the purchase, and further alleged that said judgment of the supreme court of New York had never been appealed from reversed, or in any way vacated or modified, and was binding and conclusive not only upon the parties to said action, but upon the other holders of said bonds issued by the Lebanon Springs Railroad Company. The answer then proceeded to set forth proceedings in the circuit court of the United States, including the decree of March 24, 1887, and to pray, among other things, that the petition should be dismissed upon the merits and that a decree may be rendered recognizing the rights of the defendant the Central National Bank of Boston as a holder of said certificates as such rights had been theretofore established by the decree of the circuit court of the United States.
The American Loan and Trust Company filed its separate answer, admitting some and denying other allegations of the petition. Hazard and Foster also filed a separate answer on their own behalf, in which they allege that the Sackett suit was brought and pursued in behalf of all the bondholders; that they, Foster and Hazard, had purchased the railroad property and franchises in good faith, and that, by the judgment, decree, and sale in said suit all the rights of said bondholders, plaintiffs in this suit, were cut off and barred, and that they, Foster and Hazard, had thereby acquired a good and valid title to said property and franchises, and thereupon they prayed that the complaint be dismissed and that a decree be rendered establishing their rights as purchasers of said road under said judgment and decree.
The New York, Rutland and Montreal Railway Company likewise filed a separate answer denying the principal allegations of the petition and praying that the rights of said company as purchaser of said road from Foster and Hazard should be confirmed, and that the complaint be dismissed.
Certain other individual defendants, holders of receiver’s certificates, likewise answered, denying these allegations of the petition which assailed the validity of the proceedings in the Sackett suit and praying that the said petition should be dismissed. Separate answers were likewise filed by Seligman and Brown and by William R. Duncan substantially to the same effect.
Upon the first trial of this action, judgment was rendered in favor of the defendants dismissing it on the merits. On appeal, that judgment was reversed by the general term, and a new trial ordered. Stevens v. Union Trust Co., 57 Hun. 498.
At the new trial, judgment was rendered in favor of the plaintiffs on November 10, 1891, and this judgment, having been affirmed by the general term, was taken on appeal to the Court of Appeals, whose judgment, rendered November 27, 1894, affirmed that of the court below. 144 N.Y. 50. This writ of error was then sued out.
Upon sale made by John L. Henning, as referee, under the judgment of the supreme court in this case, pending the appeals, there was executed and delivered to said William Foster, Jr., by said referee, a deed of conveyance of the railroad, property, and franchises, dated May 16, 1892, and, as already stated, on March 23, 1892, the railroad was sold and conveyed to William Foster, Jr., by the referee appointed by the decree of the United States court.
After the judgment of November 10, 1891, William Foster, Jr., brought an action in the supreme court of New York against the Central National Bank and other holders of certificates, seeking to set aside that portion of the decree of the United States circuit court of March 24, 1887, which adjudged that Foster, either alone or with Hazard, pay the Central Bank and other certificate holders the deficiency that might exist in the payment of the certificates after the application of the proceeds of the sale of the road, and to annul and enjoin the decree that execution issue for such deficiency, and that this action, so brought by Foster, has been removed, on the petition of the Central National Bank, to the Circuit Court of the United States for the Northern District of New York, where it is now pending.