Bankers' Mortgage Co. v. Sohland , 33 Del. 331 ( 1927 )

Case heard on petition of Citizens' Trust Company to intervene.

The Sheriff's return on the writ of foreign attachment issued in this proceeding stated that on the nineteenth day of August, A. D. 1926, he "attached all the shares of the common and preferred capital stock of Alfred Sohland in Bankers' Mortgage Company, a corporation existing under the laws of the State of Delaware, with all the rights thereto belonging."

Rev. Code 1915, § 4137, provides:

"The Court shall make an order that the sheriff shall sell the property attached."

The intervening petition of the Citizens' Trust Company was duly sworn to and was filed on the sixteenth day of December, A. D. 1926. This petition, among other things, in substance, alleged that on or about the twenty-second day of January, A. D. 1925, the Petitioner, in good faith and in the regular course of business, lent to Alfred Sohland, the defendant, the sum of $25,000; that in order to secure the payment of said sum of $25,000 Sohland gave his note to the petitioner, payable on demand, and. also, delivered with said note and as collateral security therefor certificate No. 285 "duly assigned" for 500 shares of the preferred capital stock of Bankers' Mortgage Company, a corporation of the state of Delaware; that the 500 shares of preferred stock, evidenced by said certificate, were the same shares of stock attached by the plaintiff in this action; that, as of June 2, 1926, there was still a balance due on said $25,000 note of $16,475.

The petitioner then prayed that it might be permitted to intervene in this action and that a rule might be granted upon the plaintiff to show cause why an issue should not be granted, if necessary, to determine the interest of such petitioner in said 500 shares of preferred stock, and that such order of sale as might be made in this proceeding should direct the sale of said 500 shares of preferred stock to be made subject to the pledge of said stock in favor of the petitioner.

A copy of the collateral note, which in the usual form recited the delivery to the petitioner of 500 shares of the preferred stock of the Bankers' Mortgage Company, and authorized the sale of any and all securities pledged as collateral for such note, was duly attached to said petition.

The plaintiff moved to dismiss this petition.

The plaintiff contends (1) that intervention is a right unknown to the common law and there being no statutory provision authorizing it the right contended for does not exist in this State; (2) that the rights claimed by the petitioner are purely equitable in character, and, therefore, must be litigated in the Court of Chancery.

While there may have been exceptions in certain cases in the English Ecclesiastical Courts, it is true that the right to intervene in an action at law was a civil law remedy and did not, as a general rule, exist at common law. 123 Am. St. Rep. 280, note; 18 Ann. Cas. 594, note; 23 L.R.A. (N.S.) 540, note; 20 R. C. L. 683; Pennsylvania Steel Co. v. N. J. So. R. Co., 4 Houst. 572.

For the prevention of the abuse of process, or, perhaps, more strictly speaking, for the prevention of circuity of action, and the delays and expenses arising therefrom, or as it is sometimes stated, on the ground of necessity, this right has, nevertheless, been recognized in this State, where the person seeking to intervene claims some right in or lien on the property attached. Stieff v. Bailey, 4 Boyce, 508, 89 A. 366; In re Gould, 1 W. W. Harr. (31 Del.) 218, 113 A. 900.

While the authorities are not uniform, there is, however, ample support in this country for this position. Kean v. Doerner, 62 Md. 475; Megee v. Beirne, 39 Pa. 50; Pike v. Pike, 4 Fost. (24 N. H.) 384; Daniels v. Solomon, 11 App. D. C. 163; Sailor Planing Mill Lumber Co. v. Moyer, 35 Pa. Super. Ct. 503; Gumbel v. Pitkin, 124 U. S. 131,8 S. Ct. 379, 31 L. Ed. 374; U. S. v. Neeley (C. C.) 146 F. 764; Torreyson v. Turubaugh 105 Mo. App. 439, 79 S. W. 1002; 6 C. J. 373, 370, 2 R. C. L. 882; Potlatch Lumber Co. v. Runkel, 16 Idaho, 192, 101 P. 396, 23 L.R.A. (N.S.) 536, 18 Ann. Cas. 591; 123 Am. St. Rep. 280. It is true that the Delaware cases above cited are inconsistent with the Pennsylvania Steel Co. v. N. J. So. R. Co., 4 Houst. 572 (578), decided by this Court in 1874, but while it does not appear that the Houston Case was called to the attention of the Court, in the more recent cases it is clear that the conclusion reached by it was not adhered to in those cases.

The right to intervene in a proper case, therefore, exists in this State, but whether the particular facts require the application of such right is to some extent, at least, in the discretion of the Court to which the petition is presented. 123 Am. St. Rep. 287; Clough v Curtis,62 N. H. 409; Sailor Planing Mill Lumber Co. v. Moyer, 35 Pa. Super. Ct. 503.

Byall v. Rigdon, 6 Boyce, 544, 100 A. 835, merely applied this principle. The right to intervene in a proper case was conceded but the Court refused the application of the petitioner because under the particular facts involved justice could not be done in a Court of Law to all parties concerned.

There may have been other unreported cases where the application to intervene was granted, and still others where it was refused, but we know of no case in which the Stieff Case was overruled.

The plaintiff in this action, also, contends that this is not a proper case for intervention because the rights set up by the petitioner are purely equitable in character.

The petitioner alleges that he made a certain loan to Alfred Sohland, the defendant, for which Sohland gave his note, and for the bona fide purpose of securing the money lent, also, delivered with said note and as collateral security therefor certificate No. 285 "duly assigned" for 500 shares of the preferred capital stock of Bankers' Mortgage Company, and that said 500 shares of preferred stock, evidenced by said certificate, was precisely the same stock that was subsequently attached by the plaintiff in this proceeding.

It does not appear from the petition filed that the stock in question was transferred to the Citizens' Trust Company on the books of the Bankers' Mortgage Company. In fact, the attorney for the Trust Company concedes that it was not so assigned, but under the decisions of this State that step is not necessary in order to convey title to the assignee. State ex rel. Cooke v. N. Y.-Mexican Oil Co. et al., 2 W. W. Harr. (32 Del.) 244, 122 A. 55.

The Citizens' Trust Company is, therefore, permitted to intervene in this action.