Eastern Electric Cable Co. v. Great Western Manufacturing Co. , 164 Mass. 274 ( 1895 )

Morton, J.

The bonds in the possession of the Trust Company were the unissued obligations of the Manufacturing Company. The Trust Company had made no advances on them, and could not issue them except, as the bill stated, by the order of the Manufacturing Company. The unissued notes or bonds of a party in his possession and control do not constitute a part of his property or assets. Richardson v. Green, 133 U. S. 30, 47. Coddington v. Gilbert, 17 N. Y. 489. See also Barnes v. Mobile & Northwestern Railroad, 12 Hun, 126; Sickles v. Richardson, 23 Hun, 559; Cook, Stock & Stockholders, (3d ed.) § 762; Jones, Corporate Bonds & Mortgages, (2d ed.) § 181. And a party cannot be directly compelled to issue his notes or bonds for the purpose of borrowing money to pay his debts.

The plaintiff further contends that there are valuable rights which the Manufacturing Company has against the Trust Company which can be reached and applied, and which are, first, the right to any surplus that may remain after the mortgage is paid; secondly, the right to a release in case the bonds are paid in full by the Manufacturing Company; and, thirdly, a possible right to require the return of the bonds which are in the hands of the trustee.^* There has been no foreclosure or default of the mortgage, there is no present surplus in the hands of the mortgagee to which the Manufacturing Company is entitled, the bonds have not been paid in full by it, and non constat that they will be, and no demand has been made for a release, or for a return of the bonds in the possession of the Trust Company.

We have been referred to no case in which it has been held that rights or demands so contingent and conjectural were property that could be reached and applied in payment of debts due to a creditor. See Pettibone v. Toledo, Cincinnati, & St. Louis Railroad, 148 Mass. 411; Amy v. Manning, 149 Mass. 487.

Consideration of other questions raised and discussed in the briefs is rendered unnecessary by the result reached on the question whether the Manufacturing Company had any property in the possession of the Trust Company, and whether the alleged rights could be reached and applied in payment of the plaintiff’s demand. Decree affirmed.

* The counsel for the plaintiff in their brief cited Pinney v. McGregory, 102 Mass. 186; Wiggin v. Heywood, 118 Mass. 514; Judge v. Herbert, 124 Mass. 330; Jenkins v. Lester, 131 Mass. 355; Whipple v. Fairchild, 139 Mass. 262; Bragg v. Gaynor, 85 Wis. 468; Massie v. Watts, 6 Cranch, 148, 160.