Walker v. Reister

delivered the opinion of the court.

The appellant, who was assignee in bankruptcy of the North Missouri Insurance'■ Company, -filed his bill in equity in the District Court for the Eastern'District of Missouri against the appellees, who had been the officers and directors of the corporation prior- to the bankrupt proceedings. The District Court, after answer," replication, and voluminous depositions, dismissed the bill, and the Circuit Court affirmed that decree on appeal. From this latter decree the assignee appeals to this court.

The bill, in substance, sets forth that, at. a certain date prior to'the institution of proceedings-in bankruptcy, the corporation was the owner of bonds, of the counties of Macon, Schuyler, Knox, and Adair, and other securities, amounting in the • aggregate 'to over §136,000; that the bonds were in the possession of the company in the month of May, 1873, when they' were exhibited to the superintendent of. the insurance department of the State of Missouri, and a similar officer; of the State of Ohio, by the defendants, or some of them, as investments of the funds of the company, and as evidence to these superintendents of the sound condition pf the company and its right to continue the business of insurance. The foundation of the relief sought is thus stated in the language in the bill: —

• “ Yet your orator further shows that, notwithstanding the premises, the said directors and .officers, unmindful of their duty aforesaid, but intending to cheat and defraud the said insurance company and its creditor's aforesaid, prevailed upon’ and procured the.said treasurer [the treasurer of the company] to unite and co-operate with them, as in fact he did unite and co-operate with them, -in parcelling out and distributing the said notes and bouds among themselves and -their friends at some time prior to the .nineteenth day of June, 1873, wholly without consideration whatever, and in gross disregard of tlieir duty as such directors-and officers of said company, and thereby and through the neglect, of duty, and through the fraud and breach of trust .of the said officers and directors of said company, the said bonds and notes became- and were wholly lost • to the said company and its creditors, and to your orator as assignee aforesaid.”

The clear result of a large amount of 'testimony in- regard to the bonds in controversy is that they wtere borrowed from divers,' persons and corporations who '.owned them, or were placed in the temporary possession of the officers of the insurance company for the purpose.of being shown to the examining superintendents as property of that company, with the understanding that as soon as the'examination was over they should be returned to their owners; and that this was done. It is also established that the parties who- actually owned the bonds were aware of the fraudulent use which was to be made of them, and were willing in this way, to contribute to the deception practised on the official examiners.

I\ ^thing of this, however, is alleged in the bill or is found in the answer. The relief sought is based squarely on the ground that the bonds' in question, being in possession of the defendants as the property of the insurance company, were by thém unlawfully converted to their own use,, whereby the company and the creditors of the company, by reason of its insolvency, were defrauded of their value. Th¿ bill makes a case of conversion for which an action in the nature of trover at common law would lie, and it is difficult to see any sufficient ground for the interposition of a court of equity.

But, apart from' this, it seems' that unless the complainant has sustained both of the principal allegations of the bill,— namely, that the bonds .were the property of the company, and that the defendants unlawfully converted' them to their owii use, — his bill was properly dismissed.

• Now, the testimony makes it very clear that the defendants did not convert the bonds to their, own use or distribute them among their friends, as alleged in the bill. It is also quite apparent that they received no consideration for the return of the bonds to their owners, and committed no fraud on the insurance company in the transaction, and that, in fact, they were acting with a mistaken zeal in what they supposed to be the interest of. their corporation.

They do not, therefore, occupy the position of embezzlers of

So, also, we do not think that the evidence establishes that the insurance company' was ever the owner of these bonds. It never paid anything for them, nor gave consideration in any other way. It lost nothing by the transaction in which the bonds came into the possession of its officers and passed out of that possession.

It had not, 'therefore, any honest claim to' the ownership of . the bonds; and if the dishonest purpose for which they were used can be imputed to the corporate entity, it is very certain that when the transaction was over it could confer no rightful •authority on that corporation to retain or reclaim the bonds. As between the. insurance company and the owners'of the ■bond's the title never passed from the latter, nor did any vested ownership pass to the former. How, then, can it be said that these officers cheated or defrauded the company ? or that the bonds were lost to the company by their neglect of their fraud or breach of trust? How could the Corporation lose what it did not own ? How could it be cheated out of that to which it had no right? . How could it be defrauded out of property belonging to others and. in the hands of those who owned it?

A very ingenious argument is made by counsel of appellant,' on which he places much reliance, to the effect that having proved that these bonds were once in the possession of the insurance' company, and were not to .be found when'its assets were turned over to the assignee, hé has made a prima facie case, and that defendants cannot set up in their defence the fraudulent transaction which shows their own guilt.

It‘is not necessary to decide here whether, if the complainant had brought an' action of trover, and had proved before the jury by some competent witness that theáe bonds were in the hands of the officers of the company, who asserted them tb be the bonds of the corporation, they would in defence have been permitted to show the facts we have stated because of the turpitude of their action in the matter. We need not decide this, for the reason that, in proving the possession of these bonds, the

It is also argued that the fraud was against the creditors of the company, and the assignee can pursue the party who defrauded them.

To this there are several sufficient answers.

1. The bill is not framed on that foundation, but distinctly, on the ground o.f a conversion of the funds of the company, which,’ if true, is to that extent a fraud on the company’s creditors. But as we have already shown, the company was defrauded of nothing, because it did not own the bonds.

2. Though the bill alleges in a general way that the exhibition. of these bonds was a fraud upon the creditors, it is difficult to see how that can be if the bonds were, as the bill alleges, at that time the property of the company. If that was so,, the officers had a right, and were in duty bound, to exhibit them.

3. There is no allegation that any particular creditor ever became so, or was influenced in his action toward the corporation by reason of this exhibition of these securities, and it is denied in the answer that any creditor was so influenced, and no proof to establish the charge is given.

4. And, last, it seems to be reasonable that if any creditor was misled- to his loss by this fraudulent misconduct of the officers of the company, he would have a corresponding right to a remedy in his own name against them to the extent" of his individual injury, quite independent of the'right, of the

In short, whatever remedy there may exist to any one to pursue these parties and others for their share in this transaction, either at law or in equity, this bill, founded' on a devastavit of assets of the company, — if language borrowed from a kindred branch of the law may be thus used, — cannot be sustained, because it is clear that the bonds which are said to have been converted were never the bonds of the bankrupt corporation.

Decree affirmed.