Chicago St. Railway Company v. Third National Bank/Opinion of the Court

Upon these facts, can the validity of the decree requiring the Milwaukee Company to pay to the bank, within a specified time, the amounts of the two judgments held by it, be successfully questioned? We think not. It would perhaps be difficult to point out any separate clause in the lease by which the Milwaukee Company obligated itself to pay the judgment in favor of the bank; and yet there is force in the contention that, taken as a whole, the instrument casts this burden upon the company. A part of the subject-matter of the contract was claims against the Pacific Company. One recital is of the foreclosure debt. Immediately following is one of the existence of claims, some of which had been sued on, and passed into judgment, and become liens, others still unliquidated; followed by the recital that the purpose of this arrangement is the redemption from said foreclosure sale, and the protection of the property from all the aforesaid valid judgment liens. Narrowly, the valid judgment liens referred to may include only those already existing, mentioned in the preceding recital; or, broadly, all valid judgment liens perfected on the claims named in that recital, whether already in judgment in not. If these were all the provisions, the narrow construction might be preferred; but the further and express covenants of the Milwaukee company were to pay and discharge fully the proposed indebtedness of $3,000,000, and to return at the end of the lease, to the lessor, the demised property. Does not this indicate that the understanding and intent were that the Milwaukee Company should discharge all judgment liens founded upon existing claims, whether such liens had already been perfected, or should be created in subsequent suit? A judgment after a lease does not of its own right defeat the lease, or deprive the lessee of his interest and possession; but it operates against the lessor, and whatever interest, great or small, is retained in the leased premises. The purpose of this stipulation was not the protection of the lessee, but of the lessor. It was not that the lessee should be able to retain and enjoy the possession during the terms of the lease, but that the property should be freed from all burdens, so that at the termination of the lease the lessor might retake and enjoy it. The scope of the contract was not the payment of the debts of the lessor; for a mere debt, never passing into judgment, casts no burden upon the interest of lessor or lessee in the property, and the removal of all burdens was apparently the intent of the conr acting parties. But, again, the express lien on the lessor's property amounted only to about $1,100,000; yet, by the arrangement, a new lien was created, from which nearly $3,000,000 was received, all of which sum passed into the hands of the lessee. Will not equity, for the payment of the debts of the lessor, follow this surplus into the hands of the lessee? Can a corporation in debt transfer its entire property by lease so as to prevent the application of the property at its full value to the satisfaction of its debts? Railroad Co. v. Pettus, 113 U.S. 116, 124, 5 Sup. Ct. Rep. 387; Mellen v. Iron-Works, 131 U.S. 352, 366, 9 Sup. Ct. Rep. 781. We do not care to pursue an inquiry into this question at length, or consider what limitations would surround this doctrine as applied generally, preferring to notice a single matter, which is significant and decisive. The contracting parties arranged, not merely for the discharge of the foreclosure lien, but for the completion of the road for which the lessor's franchise was granted. The lessee not only performed these stipulations, but, with moneys arising from the sale of these bonds, built for its own benefit a bridge across the Mississippi river connecting this road with its line in Iowa, and thus making a continuous line of road to Omaha. Heglecting to pay the debts of the lessor, it appropriated a large amount of the proceeds of the trust-deed upon the lessor's property to its own benefit, and the improvement of its own property. Here, clearly, was a diversion of funds which the creditors of the lessor might follow in equity. This is only the application of familiar doctrine. The properties of a corporation constitute a trust fund for the payment of its debts; and, when there is a misappropriation of the funds of a corporation, equity, on behalf of the creditors of such corporation, will follow the funds so diverted. The Milwaukee Company, from securities on the property of the Pacific Company, received nearly $3,000,000. Part it used for the benefit of the lessor company, and part it appropriated to its own benefit. Can it do this, and let the lessor company's debt go unpaid? Equity answers this question in the negative, and such was the ruling of the circuit judge. 26 Fed. Rep. 820.

Entertaining no doubt upon these matters, we pass to the consideration of certain questions of equity pleadings and procedure and evidence upon which the counsel for appellant largely relies. It will be remembered that, after its redemption from sale under the Tabor judgment, the bank, following the provisions of the statute, advertised the property for sale on the execution issued upon its own judgment. The railroad companies filed their bill in equity in the circuit court to restrain such sale. The bank, besides its answer, filed a cross-bill, which, after setting out the facts, prayed that its judgment might be decreed a valid equitable lien and incumbrance upon the property of the Pacific Company; that a receiver might be appointed, with power to apply the revenues to the judgment; and that the property be sold in satisfaction thereof; and for general relief. It is objected that such cross-bill was not germane to the original bill, and was therefore improperly filed. The case of Railroad Cos. v. Chamberlain, 6 Wall. 748, fully answers this objection. In that case a bill was filed to set aside the judgment. One of the defendants, owner of the judgment, filed a cross-bill, praying that the judgment might be decreed a valid lien, and the property sold to satisfy it. The court dismissed both bills,-the latter on the ground that, the former having been dismissed on its merits, the latter could not be maintained, because the parties litigating were both citizens of the same state. This last ruling was reversed by this court; Mr. Justice NELSON, delivering the opinion, saying: 'We think that the court erred in dismissing the cross-bill. It was filed for the purpose of enforcing the judgment, which was in the circuit court, and could be filed in no other court, and was but ancillary to and dependent upon the original suit,-an appropriate proceeding for the purpose of obtaining satisfaction.' In that case, the original bill was to set aside a judgment; here, to restrain an execution sale under a judgment. But this difference does not affect the principle. Where, in a court of equity, an apparent legal burden on property is challenged, the court has jurisdiction of a cross-bill to enforce by its own procedure such burden. The court which denies legal remedies may enforce equitable remedies for the same debt, and an application for the latter is not foreign to a bill for the former.

Again, it is objected that an amendment to the cross-bill was allowed at the hearing, which changed the nature of the issues, and was therefore improper. This is the most serious question in the case. The amendment conformed the cross-bill to the proofs, and was in accord with the view of the law applicable to the facts, as indicated by the circuit judge, and as already approved by us in the forepart of this opinion; but it did work a change in the ground upon which relief was sought. The cross-bill as originally framed, relied upon the fact that, by redemption from the foreclosure sale by the mortgagor, the lien of the foreclosure decree was wholly removed, leaving the Tabor judgment as a first lien upon the property; that, by the redemption from the sale under the Tabor judgment, the bank became possessed of that lien; and that, holding that lien and its own judgment lien, it was entitled to enforce those liens in equity, if not by execution at law. The misappropriation of a part of the proceeds of the $3,000,000 of bonds by the Milwaukee Company was not distinctively or separately alleged or counted on as the basis of relief. The amendment introduced this matter into the cross-bill, but the fact was distinctly stated in the original bill filed by the railroad companies, for it alleged 'that said lessee, with the means provided by the execution of said last-named trust-deed and bounds, and the proceeds of the sale thereof, by and with the consent of your orator, the Chicago & Pacific Railroad Company, has completed the construction of the entire road authorized by its charter from the city of Chicago to the Mississippi river, and has also constructed a bridge across the Mississippi river at or near Savanna.' And proof of this was given by the railroad companies in their evidence. The fact was thus developed by the railroad companies, both by their bill and their proofs; and the amendment to the cross-bill was simply to enable the cross-complainant to avail itself of what had been alleged and proved by the original complainants. So, although thereby was present a new and in dependent basis of relief, we think it must be held that there was no error in permitting the cross-complainant to avail itself of the fact thus furnished by its adversaries.

It is also objected that after this amendment, thus introducing new issues, the defendants to the cross-bill asked leave to file an answer thereto, which was denied; but the answer which was tendered contained no defense to the matter thus presented. It averred, in substance, that the Milwaukee Company had expended upon the road of the Pacific Company more than the entire proceeds of the $3,000,000 of bonds, to-wit, about $4,000,000; but it contained no denial of the fact that it had used, as alleged, a part of the proceeds of the bonds in the construction of the bridge across the Mississippi river. In other words, it sought to excuse its misappropriation of a part of the proceeds of those securities by the fact that it had afterwards spent a large amount of its own money in improving the property of the Pacific Company. But that did not excuse the misappropriation, or release it from liability therefor. The misappropriation gave to the bank, at the time at which it was made, the right to pursue the misappropriated proceeds into the hands of the Milwaukee Company. Tha right the Milwaukee Company could not thereafter defeat by spending money on the property of the Pacific Company; and it was unnecessary to enter into any inquiry as to the reason for this subsequent expenditure, or as to how far the necessities of its own business on the through line from Chicago to Omaha compelled further improvements on that portion of the line east of the Mississippi river.

Still again, it is objected that there was no testimony showing how much of the proceeds of these bonds was expended in the construction of the bridge across the Mississippi river. The original bill alleged that the bridge was constructed out of the proceeds of these bonds, and it might almost be assumed that the construction of a bridge across such a great river would cost far more than the amount of the bank's claims. But, further in the hearing, the president of the Pacific Company, who is also the counsel in this case, was examined as a witness, and testified as to the construction of the bridge out of the proceeds of these bonds; that the Pacific Company had parted with all its property, and had no earnings or income; that it was impossible for him to give any detailed statement of the manner in which the proceeds of the $3,000,000 of bonds was expended; and that he did not know whether any of the employes of either company could furnish such statement. Inasmuch, therefore, as the original bill alleged the construction of this bridge out of the proceeds of these bonds; as the answer to the amendment to the cross-bill did not deny the fact of such misappropriation, or aver that it was less than the amount of complainant's claims; and as the principal officer of the Pacific Company was unable to tell how much was thus expended, and did not know of any one who could furnish the information,-we do not think the court erred in assuming that the amount of such misappropriation was in excess of the bank's claims, and rendering a decere accordingly. We see no error in the record, and the decree is therefore affirmed.