Central Trust Company v. Grant Locomotive Works

SAME

v.

GRANT, (two cases.

Nos. 1,279, 1,282.

DAYTON, F. W. & C. R. Co.

v. GRANT LOCOMOTIVE WORKS et al.

No. 1,278.

SAME

v.

GRANT.

No. 1,280.

April 21, 1890.

On August 1 and 2, 1883, upon a creditors' bill brought by Granville D. Braman, a judgment creditor of the Toledo, Cincinnati & St. Louis Railroad Company, Edwin D. Dwight was appointed receiver of all the property of the company in Illinois, Indiana, and Ohio, by orders made in the circuit courts of the United States in districts of those states. August 14, 1883, the Central Trust Company filed its bill in the United States circuit court for the southern district of Ohio against the Toledo, Cincinnati & St. Louis Railroad Company, the Cincinnati Northern Railway Company, and the said Braman and another, asking a foreclosure of certain mortgages therein described. This cause was numbered 3,554. In October, 1883, the Central Trust Company filed its bill in the same court against the Toledo, Cincinnati & St. Louis Railroad Company, the Toledo, Delphos & Burlington Railroad Company, and the said Braman for a foreclosure of certain mortgages therein set forth, which cause was numbered 3,578. On October 25, 1883, one William J. Craig was appointed receiver of the mortgaged property in each of these causes, took possession of it, and superseded the possession of the former receiver, Dwight. October 27, 1883, the Grant Locomotive Works and the American Loan & Trust Company by leave filed their intervening petition in No. 3,578, setting up a contract between the Toledo, Cincinnati & St. Louis Railroad Company and the Grant Locomotive Works for the leasing and conditional purchase chase by and sale to the railroad company of 10 locomotives, Nos. 57 to 66, for the price of $105,000, payable in installments, the title to the locomotives remaining in the Grant Locomotive Works until payment was fully made; that the whole purchase price was represented by bonds of the railroad company, made payable at the office of the American Loan & Trust Company at Boston, and certified to by said trust company as trustee; the default of the Toledo, Cincinnati & St. Louis Railroad Company; and praying a surrender of the 10 locomotives, and the payment of all arrears due for rent, interest, and repairs up to that time, under said contract, and also of any deficiency that might arise upon a resale by them of the said 10 locomotives, and for other relief. On the same day, R.S. Grant filed in No. 3,554 his intervening petition, alleging a similar contract with the Cincinnati Northern Railway Company in respect to other locomotives at the price of $90,558.97, of which $18,558.97 was paid in cash, and the remaining $72,000 was made payable in monthly installments, represented by bonds of the Cincinnati Northern Railway Company, the payment of which was assumed by the Toledo, Cincinnati which was assumed by the Toledo, Cincinnati & St. Louis Railroad Company, upon consolidating with the former company, in 1883, the title to the locomotives remaining in the said Grant until payment in full was completed; the default of the Toledo, Cincinnati & St. Louis Railroad Company; and praying for the return of the locomotives, the payment of all arrears due for rent, interest, and repairs up to that time, and also of any deficiency that might arise upon a resale of the said locomotives, and for other relief.

On December 6, 1883, Craig, as receiver, by his attorney, filed his answer to the intervening petitions, admitted the agreements and the defaults in payment, and further answered that all the locomotives were in his possession, and were necessary to the operation of the railroads by him; and prayed that the court would make such order as would enable him to retain the possession and use of the locomotives. On the 17th of December, 1883, the attorney of the receiver notified the judge of the court that there was no reason why judgment should not go upon the intervening petitions, and that there was no objection to the draft of decrees, as the receiver had only resisted claims for damages, and these had been waived. On the 22d day of December, 1883, of the October term, two orders were entered in each of said causes, Nos. 3,554 and 3,578, in favor of the intervening petitioners. The two in favor of R. S. Grant in No. 3,554 were as follows: 'The said couse came on to be heard upon the petition and the answer of the receiver thereto, and upon the evidence submitted on behalf of said petitioner. And it appearing to the satisfaction of the court that the receiver has in his possession Grant locomotive No. 73, and is using the same in the operation of said Cincinnati Northern Railway Company between Cincinnati and Dayton, Ohio, and that said locomotive is one of the ten covered by the agreement of lease set out in said petition, and was acquired by said railway company under the terms of said agreement, and was so held at the date of the appointment of the receiver herein; and it further appearing that the present receiver or his predecessor took the said locomotive, with its tender, into his possession as such receiver on the 1st day of August last, and has had the same in continuous use and possession since that date, without having made any of the monthly payments of rental as provided in said indenture of lease, or other compensation, for the use thereof; and it further appearing that the said locomotive is, in the judgment of the receiver, necessary to the proper operation of said railway, and should be acquired as part of its permanent equipment, and that the value of said locomotive as fixed in said agreement of lease is reasonable, and that the petitioner, R. S. Grant, the owner of said locomotive and tender, is willing, upon receipt of the contract price, or upon being adequately secured therein, to transfer the title of the same to the receiver; and the matter being fully heard by the court, and upon due deliberation thereon,-it is hereby ordered, adjudged, and decreed that the receiver pay to the said petitioner as rental for said locomotive and tender, and in full for all claims for rental, interest, and repairs, down to the 1st day of December, 1883, the sum of $770.48, the same being the amount due to said date under the terms of said lease; and the further sum of $7,520, balance in full as purchase money for said locomotive and tender. And it is further ordered that the receiver pay said several amounts, as part of the oe rating expenses of the said railway, out of any money not appropriated for the payment of current labor, supplies, and taxes. And it is further ordered and decreed that the said several amounts, with interest thereon at the rate of six per cent. from the 1st day of December, 1883, shall be a charge upon the earnings, income, and all the property of the said Toledo, Cincinnati and St. Louis Railroad Company, and especially of the said Cincinnati Northern Railway Company, as ahead of the first mortgage or other bonded debt of said company, or either of them; and any balance of said several amounts remaining unpaid at the date of the foreclosure and sale of said railways shall be a first lien thereon, and the said sale shall be made subject thereto.' The second order commenced: 'The said cause came on to be heard upon the petition, and the answer of the receiver thereto, and upon the evidence submitted on behalf of said petitioner. And it appearing to the satisfaction of the court that the receiver has in his possession Grant locomotives numbered 67, 68, and 72, with their tenders, and is using the same in the operation of the said Southeastern Division of the said defendant company's railroad, between Dayton and Wellston, Ohio, and that the said locomotives are three of the ten covered by the agreement of lease set out in said petition, and were acquired by said railway company under the terms of said agreement, and were so held at the date of the appointment of the receiver herein.' This order continued in the terms of the preceding one, and decreed certain amounts for rentals, interest, and repairs down to December 1, 1883, and a further sum in full as purchase money fro said locomotives and tenders, and concluded as follows: 'And it is further ordered that the receiver pay said several amounts, as part of the operating expenses of the said Southeastern Division, out of any money not appropriated for the payment of current labor, supplies, and taxes. And it is further ordered and decreed that the said several amounts, with interest thereon at the rate of six per cent. from the 1st day of December, 1883, shall be a charge upon the earnings, income, and all the property of the said Toledo, Cincinnati and St. Louis Railroad Company, and especially of the said division, prior to the 1st mortgage or other bonded debt of said railroad or said division thereof; and any balance of said several amounts remaining unpaid at the date of the foreclosure and sale of said railroad or said division shall be a first lien thereon, and the said sale shall be made subject thereto.'

Upon the 7th day of March, A. D. 1884, the same being one of the days of the February term, 1884, of the court, these orders were suspended by an order of court; the petitioner objecting. On the 15th day of March, A. D. 1884, the Central Trust Company filed its petition in the cause, which it prayed might be taken as an answer to the intervening petition of Grant, and also as a petition for rehearing and review of the orders of December 22, 1883, which it further asked should be annulled and set aside. On the 10th day of April, of the April term, 1884, an order was entered in the circuit court as follows: 'This day this cause came on further to be heard upon the intervening petition of R. Suydam Grant, filed in this cause October 27, 1883; and the court, being fully advised in the premises, does order, adjudge, and decree as follows, to-wit: The court finds that the two decrees herein made and entered upon said intervening petition on the 22d day of December, A. D. 1883, were entered without notice to the complainant herein and without proof; that the said decrees are erroneous and unjust to the bondholders for whom said complainant is trustee; that said decrees are not authorized by the pleadings, and are based upon a misrecital of the facts as evidenced by the record of this cause; that said decrees were authorized by the court without examination, in the erroneous belief entertained at h e time that all the parties in interest had assented to said decrees, and that the parties adversely interested acquired no knowledge of the allowance of said decrees until about the 24th day of February, A. D. 1884, and after the adjournment of the term of court at which the same were entered. And thereupon it is by the court, of its own motion, ordered, adjudged, and decreed that the said decrees be, and they are hereby, annulled, set aside and held for naught. And the court, coming now to determine the question arising upon the said intervening petition of R. Suydam Grant, does order, adjudge, and decree as follows, to-wit: That the relief prayed for in the said intervening petition be, and it is hereby, denied, except as hereinafter provided. And the court does further find that the said petitioner is entitled to fair compensation for the use of said rolling stock described in his said intervening petition by the receiver of this cause upon the railroad of the Cincinnati Northern Railway Company, defendant herein, and for any deterioration by reason of such use. But the court defers the determination of the amount of such compensation until the coming in of the report thereon of the master appointed in this cause on the 5th day of April, A. D. 1884. And the court does further find that the said petitioner is entitled to take and repossess himself of his said rolling stock, wherever the same may be found, in the possession of the receiver appointed in this cause, or of the receiver appointed in causes No. 3,576, 3,577, 3,578, and 3,579 in this court. And leave is hereby granted to said petitioner to apply at any time to this court for any additional orders that may be necessary in that behalf. And the said R. Suydam Grant applied for leave to answer the petition of the complainant, the Central Trust Company, filed March 15, 1884, and to support his answer by affidavits or other proof; and the court, entertaining the opinion that the answer and affidavits proposed are, by the force of the foregoing decree, rendered unnecessary, declined to grant the leave asked, and refused to permit an answer to said petition for rehearing on affidavits or other proof in support thereof to be filed; and thereupon the intervening petitioner, R. Suydam Grant, in open court, prayed an appeal from the foregoing decree, which is disallowed by the court.' Two like orders, mutatis mutandis, were entered in case 3,578 on the petition of the Grant Locomotive Works and the American Loan & Trust Company, December 22, 1883, and were suspended March 7, 1884, and set aside April 10, 1884, by similar orders to those in No. 3,554.

In June, 1884, the Southeastern Division of the Toledo, Cincinnati & St. Louis Railroad Company was sold under a decree of foreclosure; which sale was reported and confirmed July 18, 1884. The Cincinnati Northern Division of the said railroad was sold under a decree of foreclosure, and the sale confirmed by order made on July 9, 1884. The decree for the sale of the Southeastern Division provided that unless the railroad company defendant should within 10 days pay into court the amount of interest in arrear, and the sum of $20,000, to be applied to the payment of costs and expenses, including the receiver's indebtedness, then the property should be sold, and that upon the sale not less than $20,000 should be paid in cash, and such further protions of the purchase price should be paid in cash as the court should from time to time direct, to meet other claims which the court should adjudge to be prior to the first mortgage, the court reserving the right to resell in case of failure to comply with any order in that regard; and that the balance of the purchase money should be paid either in cash, or bands taken at their net value under the decree. The fund arising from the sale was directed to be applied to the payment-First, of costs, fees, and expenses of sale; second, of receiver's expenses and indebtedness, 'and to the payment of any other claims which have been or which may be adjudgd by this court in this cause to have priority over said first mortgage;' third, to the payment of the first mortgage bonds. The decree for the sale of the Cincinnati Northern Division made provisions similar in all respects, except that the amount to be paid for costs and expenses and the amount of the bid to be paid down in cash was $50,000. The Southeastern Division was sold to N. H. Mansfield and others, as trustees, for $500,000, and the Cincinnati Northern Division to J. N. Kinney, A. S. Winslow, and others for $200,000. On the confirmation of each of the said sales, it was ordered that the purchasers, upon paying in cash the $20,000 or the $50,000, respectively, should receive a conveyance of the mortgaged property, and become subrogated to all the rights thereof of the lienholders, parties to the suit, and that the receivers should thereupon surrender possession of the mortgaged property to such purchasers. Each of the orders of confirmation contained the following clause: 'And it is further hereby ordered, adjudged, and decreed that this decree of confirmation of the sale of the premises and property, rights and franchises, aforesaid, be subject to the terms and provisions of the decree of sale heretofore entered in this cause, whereby it is provided that of the purchase price so bid at said sale such further portions thereof, in addition to the said sum of fifty thousand dollars heretofore mentioned, shall be paid in cash as this court might from time to time in this case direct, in order to meet other claims which this court has or hereafter may adjudge in this case to be prior in equity to said first mortgage, and whereby this court did reserve the right to resell in this cause said premises and property, rights and franchises, upon the failure to comply within twenty days with any order of this court in that regard; and the right, title, and interest of the said purchasers in and to the premises and property, rights and franchises, aforesaid, by virtue of the said sale, and of this confirmation thereof, and of the deed to be made in pursuance hereof, shall be deemed to be acquired subject to said provision.'

On the 8th day of February, 1887, the Grant Locomotive Works and R. S. Grant severally filed petitions in the causes Nos. 3,554 and 3,578, setting up the matters hereinbefore detailed, and alleging that the orders of April 10, 1884, purporting to annul the decrees of December 22, 1883, were void; that the decrees were still in full force; and praying that the said decrees of December 22, 1883, be adjudged to be in full force and effect, and that the same be carried into execution. The Central Trust Company answered, and the purchasers of the Southeastern and of the Cincinnati Northern Divisions demurred, and on the 11th of June, 1887, the following order was entered on each of said petitions: 'This cause this day was heard upon the petition of R. S. Grant and the Grant Locomotive Works, respectively, herein filed February 8, A. D. 1887, praying that the court set aside certain orders hereinbefore made on the 10th day of April, 1884, setting aside certain other orders theretofore made herein on December 22, 1883, upon the intervening petition of R. Suydam Grant, filed herein on October 27, 1883, and was argued by counsel; and, the court being fully advised in the premises, it is ordered, adjudged, and decreed that said order of said 10th day of April, A. D. 1884, be, and the same hereby is, set aside and held for naught, and that said orders of December 22, 1883, be, and the same hereby are, restored. And thereupon came complainant, the Central Trust Company, and prayed an appeal to the supreme court of the United States from this decree, setting aside said order of April 10, 1884, and restoring said orders of December 22, 1883; which appeal is allowed upon complainant giving bond in the sum of five hundred dollars for costs, to be approved by the clerk of this court.' The appeals so allowed were never perfected.

January 28, 8 89, the intervening petitioners having moved that the purchasers of the railroad property be required to pay into the registry of the court for the use of the intervenors the amounts due under the decrees, and that in default thereof the said railroad company property be resold for the benefit of the intervenors, decrees were entered in each case, reciting: 'And the said intervenor being present, by his counsel; and the purchasers of the Dayton and of the Cincinnati Divisions being represented by C. W. Fairbanks, their solicitor; and the Cincinnati, Lebanon and Northern Railway Company, assignee of the purchasers at the foreclosure sale of the Cincinnati Northern Railway, by William M. Ramsay, its solicitor; and the Dayton, Fort Wayne and Chicago Railroad Company, assignee of the purchasers of the Southeastern Division, and of the purchasers of the Iron Railroad, by John C. Coombs, its solicitor and R. D. Marshall, the present receiver of the said reilroad company; and the purchasers of the main line, the Toledo Terminal, and the St. Louis Division, being present by Clarence Brown, their solicitor,-objecting to the jurisdiction of the court; and the complainant, the Central Trust Company of New York, opposing said motion of the said intervenor, being represented by Edward Colston, its solicitor. And thereupon, pending the hearing upon the said motion, comes the complainant, the Central Trust Company of New York, [and prays that its petition for rehearing, filed] on the 15th day of March, 1884, be now heard as a petition for a rehearing of the said decrees of December 22, 1883; or if that relief be denied, that the same be taken and held to be a bill of review, or a bill in the nature of a bill of review; or, if that relief be denied, that the said petition be amended and supplemented in certain respects, as stated in a certain paper now read, and be now docketed as an original bill of review as of the 15th day of March, 1884,'-which application and each part thereof was denied, and the trust company excepted; and, also, pending the hearing, the Dayton, Fort Wayne & Chicago Railroad Company, as assignee of the purchasers of the Southeastern Division, prayed leave to intervene and be heard 'in review upon the matters of the original orders and decrees entered herein on December 22, 1883, and as set forth in a petition in writing therefor,' which it moved the court for leave to file herein; which application was denied, and the railroad company excepted. The court then, having heard argument, decreed that the respective purchasers should make payments into court within 60 days of the amounts still due to the intervening petitioners, and that in default of such payment the mortgaged property should be resold. The decrees recited the setting aside on the 11th of June, 1887, of the orders of the 10th of April, 1884, as void, and that all the orders or decrees entered in pursuance or in execution of the said order of April 10, 1884, were equally void and of no effect, and that the decrees entered on December 22, 1883, were in full force and effect; and ascertained the amounts remaining due, after deducting credits, to the Grant Locomotive Works for locomotives which had been used upon the Southeastern Division, with interest from a date named, and for a locomotive which had been used on the Cincinnati Northern Division; and the amounts remaining due, after deducting credits, to Grant for certain locomotives which had been used on the Southeastern Division, and for a locomotive which had been used on the Cincinnati Northern Division, with interest; and ordered that the amounts should be paid, and upon default thereof the divisions should be sold to realize the said amounts respectively. It was provided, also, that the decrees were 'without prejudice to any right the said intervenors may have to apply for orders to resell other mortgage divisions of the Toledo, Cincinnati and St. Louis Railroad for the payment out of the proceeds of such resale of any balance of the amount hereinbefore named,' and without prejudice to the right of contribution as between the purchasers of the divisions named and the purchasers of other divisions of the Toledo, Cincinnati & St. Louis Railroad. From the orders of January 28, 1889, the Central Trust Company was allowed, and perfected, appeals to this court, which are here docketed as Nos. 1,277 and 1,279. Exceptions to the rulings of the court denying the motions of the trust company that its petitions filed March 15, 1884, be amended and supplemented, and permitted to be filed as original bills of review as of that date, appear in the records. The Dayton, Fort Wayne & Chicago Railroad Company was allowed, and perfected, appeals to this court from parts of three of the said orders of January 28, 1889. These appeals are Nos. 1,278 and 1,280.

On the same 28th of January the Central Trust Company, by its solicitors, filed in the clerk's office of the circuit court its bill of review against the Grant Locomotive Works and the American Loan & Trust Company, stating the filing of its bill of foreclosure, October 20, 1883, in No. 3,578; the appointment of Craig as receiver; the filing of the bill in No. 3,554, and in three other cases; the objects of the five bills; the filing of similar bills in October, 1883, for the foreclosure of mortgages, made, respectively, by other constituent companies on their respective roads, which roads when connected would form a line of railroad extending from Delphos to Toledo, Ohio, and from Delphos through Indiana and Illinois to East St. Louis, Ill., in the proper circuit courts of the United States for the northern district of Ohio, the district of Indiana, and the southern district of Illinois; that the Toledo, Cincinnati & St. Louis Railroad Company was a corporation formed by the consolidation, under the respective laws of Illinois, Indiana, and Onio, of the abovenamed constituent companies and other companies, extending from St. Louis to Delphos, thence to Toledo, and from Delphos to Cincinnati and Ironton; that each mortgage was a separate and distinct mortgage upon separate property, there being no property in one mortgage included in another; that all of said mortgages were made prior to any consolidation, and were entirely unaffected thereby; that on October 27, 1883, the American Loan & Trust Company and the Grant Locomotive Works filed their intervening petition in No. 3,578, a copy of which is attached to and made part of said bill of review; that certain orders were entered thereon, set aside, etc., giving the proceedings in detail; that the railroad was sold on foreclosure in No. 3,578 in June, 1884, out not subject to any claim or lien for locomotives, and none of the locomotives were included in said sale, but were treated as the property of the locomotive works and Grant; that they subsequently took and removed said locomotives; that in February, 1887, the Grant Locomotive Works and Grant filed petitions to set aside the orders of April 10, 1884, and restore the orders of December 22, 1883, which petitions were granted on June 11, 1887, and the orders of April 10, 1884, were set aside and adjudged to be null and void, and the orders of December 22, 1883, were restored; that the Grant Locomotive Works filed its motion in No. 3,578, asking for an order that the purchasers of the railroad sold in that case pay into court the several amounts mentioned in the orders of December 22, 1883; that thereupon complainant prayed the court to treat such proceedings of March 15, 1884, entitled 'Petition for Rehearing,' as a bill of review to correct said orders, and to permit complainant to amend said proceedings of March 15, 1884, by adding thereto the averments contained in this bill of review, and to docket the same as thus amended as an original bill of review as of date March 15, 1884; and that the court refused to allow the same to be done, and ordered, January 28, 1889, the railroad to be sold, unless the respective amounts named in the orders of December 22 1883, should be paid within 60 days by the purchasers of said railroad sold at foreclosure sale in No. 3,578. Complainant further says that it was impossible for it to file a bill of review to correct said decrees (of December 22, 1883) at any time between March 15, 1884, and June 11, 1887, because said decrees, crees, by said order of April 10, 1884, had been set aside and annulled, and complainant so regarded them during said period; and moreover it believed, and had the right to believe, that said Grant Locomotive Works and the American Loan & Trust Company and R. S. Grant had abandoned all claim of right under the orders of December 22, 1883; and therefore complainant says that said period of time should not have been counted against it in filing its bill of beview; that the said orders of December 22, 1883, 'are erroneous, and ought to be reviewed, reversed, and set aside for the many errors and imperfections common thereto, as shown by the record of the said case 3,578, that is to say;' and then follow a number of grounds assigned for the review desired, and special grounds as to each of the orders. Complainant 'files herewith a copy of the record in said cases 3,554 and 3,578, and craves leave to refer the same as part hereof,' and prays that the orders be reviewed, reversed, and set aside, and that the American Loan & Trust Company and said Grant Locomotive Works may be required to answer the premises, and for general relief. This bill of review was subscribed and sworn to January 10, A. D. 1889. Process was issued and served on the solicitor of record for the American Loan & Trust Company and the Grant Locomotive Works. On the 29th day of January, 1889, there came on to be heard the motion of the said Loan & Trust Company and the Grant Locomotive Works to strike the bill of review from the files, which was argued by counsel, and sustained by the court. From this order the Central Trust Company prayed an appeal to this court, which was granted, and bond given and approved on the 31st day of January, A. D. 1889. The record was filed in this court October 2, 1889, and the cause docketed as number 1,281. On the same 28th day of January the Central Trust Company filed a similar bill of review against R. S. Grant, setting up the prior bill of foreclosure in case No. 3,554 and the subsequent proceedings thereon, and on the intervening petition of R. S. Grant, as in the other case, and praying similar relief, on the same grounds, in respect to the orders of December 22, 1883. This bill of review was likewise stricken from the files on the 29th day of January, 1889, and an appeal prayed to this court; the record being filed herein October 2, 1889, and the cause numbered 1,282.

Edward Colston and ''Geo. Hoadly, Jr.'', for appellants.

B. H. Bristow, Bluford Wilson, and W. S. Opdyke, for appellees.

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.