Opinion
Opinion filed September 15, 1931.
1. — Bonds — Incorporating Provisions of Deed of Trust by Reference. A provision in the series of bonds, secured by a deed of trust, declaring "which deed of trust has been duly executed, acknowledged and recorded, and to which reference is hereby made for a description of the property rights and franchises thereby mortgaged, the nature and extent of the security thereby created and the terms and conditions upon which said bonds are or may be issued and secured, all with the same effect as if the provisions of said deed of trust were herein set forth," effectually makes the terms of the bonds subject to the provisions of the deed of trust, the same as if the provisions of the deed of trust were set forth in the bonds.
2. — Same — Same — Action on Bonds — Precluded by Provisions of Deed of Trust — Negotiability. Where the provision of the deed of trust, securing bonds was incorporated by reference into the obligations of the bonds, in express terms excluding the right of any holder of any bond or coupon secured by the deed of trust, to institute any suit, action, or proceeding in equity or at common law, on account of any such bond or coupon and vesting exclusively in the trustee all rights of action on account of such bonds and coupons, such provision excluded the right of any holder to institute any right of action of any sort on account of the bonds or coupons, and held such bonds were nonnegotiable.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Granville Hogan, Judge.
REVERSED AND REMANDED ( with directions).
Jones, Hocker, Sullivan Angert and W.A. McCaleb for appellant.
(1) An instrument is not negotiable unless its terms comply with the statute, and in the absence of such requirements, words of the parties declaring that the instrument shall be negotiable are ineffective. R.S. 1929, sec. 2630; Bailey v. Smack, 61 Mo. 213; St. Louis Continental, Coal Co. v. Southern Coal Co., 194 Mo. App. 598; Aufderheide v. Moller, 221 Mo. App. 442; Kirkpatrick v. Libus, 211 S.W. 572; Bank of California v. National City Co., 251 P. 561; American National Bank v. Somerville, 216 P. 376. (2) The bonds involved in this action are not negotiable, because: (a) They are not complete in themselves. They expressly incorporate, by reference, the provisions of the deed of trust given to secure their payment, with the same force and effect as though the terms of the deed were written therein. Such reference is made not merely for the purpose of describing the security, but also for the purpose of determining "the terms and conditions upon which said bonds are or may be issued and secured." Reetz v. Pontiac Realty Co., 316 Mo. 1261; Robertson v. Kochtitzky, 217 S.W. 543 (Mo. App.); King Cattle Co. v. Joseph, 198 N.W. 798 (Minn.), and cases cited; Old Colony Trust Co. v. Stumpel, 247 N.Y. 22; Cornish v. Wolverton, 81 P. 4; Garrett v. Myers, 91 N.W. 400; Brooke v. Struthers, 68 N.W. 270; Enoch v. Brandon, 164 N.E. 45; Warren v. Grunwell, 48 P. 205; Wistrand v. Parker, 52 P. 59; Iowa National Bank v. Carter, 123 N.W. 237. (b) The bonds are not for the payment of a sum certain. The provision of the deed of trust by which the maker agrees and covenants to pay all taxes which may be assessed against the bonds renders to sum payable uncertain. Coolidge McClaine v. Saltmarsh, 165 P. 508; Smith v. Myers, 60 N.E. 858, and cases cited; Vancouver National Bank v. Starr, 211 P. 746; Garnett v. Myers, 91 N.W. 400; Walker v. Thompson, 66 N.W. 584; Brooke v. Struthers, 68 N.W. 275; Lockran v. Cline, 46 P. 720; Smith v. Marlin, 13 N.W. 852; Mechanics Bank v. Johnson, 104 Conn. 696, 134 A. 231; Peterson v. Metropolitan Life Ins. Co., 19 F.2d 74; Des Moines Nat'l Bank v. Stanley, 220 N.W. 80. (c) The trust deed (Art. 9, sec. 5, Rec., p. 72) precludes any holder from suing on the bonds; but provides that "all rights of action hereunder and on account of the bonds and coupons hereby secured being (are) vested exclusively in the trustee." Reetz v. Pontiac Realty Co., 316 Mo. 1261; St. Louis Continental Coal Co. v. Southern Coal Co., 194 Mo. App. 598; Mullen v. Southern Coal Mining Co., 177 Mo. App. 600; Bailey v. Railroad, 64 Ill. App. 313. (d) The deed gives the City of Oklahoma City the option to purchase the property of the Oklahoma Railway Company and if the option is exercised the city is given the right to call the bonds for payment in 1932, or at the end of any fifteen-year period thereafter. This provision renders the time of payment of the bonds uncertain and contingent and destroys negotiability. R.S. 1929, sec. 2633. (3) As the bonds in issue were not negotiable the plaintiff's predecessors in interest having acquired only the interest of a thief could not pass title to plaintiff. 9 C.J. 63, 64, and cases cited: 1 A.L.R. 717, note; Chester County Guarantee Co. v. Securities Co., 150 N.Y.S. 1010.
Jeffries, Simpson Plummer for respondent.
(1) Bonds containing the statement "this bond is negotiable" will be held to be negotiable, if possible. Payne v. Cummins, 207 Mo. App. 64; Jones on Corporate Bonds and Mortgages (3 Ed.), p. 219, sec. 196-A; Enoch v. Brandon, 164 N.E. 45. (2) The bonds involved in this action are negotiable under the provisions of the Negotiable Instrument Law. R.S. 1929, secs. 2630, 2631, 2632, 2633, 2634 and 2638. (3) The negotiability of corporate bonds claimed to be negotiable is to be determined entirely from the face of the instruments themselves. Owings v. McKenzie, 133 Mo. 323; Utah Lake Irrigation Co. v. Allen. 231 P. 818; Enoch v. Brandon, 249 N.Y. 263, 164 N.E. 45; Williamson v. Craig, 215 N.W. 664; Waterbury Wallace Co., Inc., v. Ivey, 163 N.Y.S. 719; 8 C.J. 113. (4) Corporate bonds and the deed of trust securing them are executed for distinct and separate purposes. The contract contained in the bond is original and absolute and the contract in the deed of trust is collateral and by way of security. They are not, therefore, to be read together as one instrument. Owings v. McKenzie, 133 Mo. 323; City National Bank v. Goodloe-McClelland Com. Co., 93 Mo. App. 123. (5) The bonds involved in this case refer to the deed of trust securing them only for the purpose of identifying said deed of trust and referring to the nature of the security created thereby. This therefore, does not incorporate all of the provisions of the deed of trust into the bond for all purposes and does not impair their negotiability. Enoch v. Brandon, 249 N.Y. 263, 164 N.E. 45; Higgins v. Hockings Valley Railway Co., 177 N.Y.S. 444; Bank of California v. National City Co., 244 P. 690; Guilford v. Minn. S. Stc. M. A. Ry. Co., 51 N.W. 658. (6) It is only where bonds refer to a deed of trust securing them in such a way as to expressly make the bonds subject to the provisions of the deed of trust that they are thereby rendered non-negotiable. Brinsmade v. Johnson, 192 Mo. App. 684; Enoch v. Brandon, 249 N.Y. 263, 164 N.E. 45; Higgins v. Hockings Valley Ry. Co., 177 N.Y.S. 444; Bank of California v. National City Co., 244 P. 690; Guilford v. Minn. S. Stc. M. A. Ry. Co., 51 N.W. 658. (7) Bonds which provide that the principal and interest therein provided shall be paid without deduction for any taxes, etc., are negotiable. 14-A C.J., sec. 2571, p. 617; Higgins v. Hockings Valley Ry. Co., 177 N.Y.S. 444; Chavelle v. Washington Trust Co., 226 F. 400. (8) Since the bonds in this case do not incorporate all of the provisions of the deed of trust therein and do not purport to make themselves subject to the provisions of said deed of trust the negotiability of the bonds is not impaired by provisions of the deed of trust alone which might purport to qualify or alter the absolute provisions of the bond. Owings v. McKenzie, 133 Mo. 323; Guilford v. Minn. S. Ste. M. A. Ry. Co., 51 N.W. 658; 8 C.J. 113, sec. 206. (9) Corporate bonds that have definite maturities but are subject to call upon the happening of conditions prior to that time are not thereby rendered non-negotiable. First Nat'l Bank v. Skeen, 101 Mo. 683; Fogg v. School District, 75 Mo. App. 159; Independent School District v. Hall, 113 U.S. 134, 28 L.Ed. 954.
This is an action in replevin, for the recovery of seven bonds issued by the Oklahoma Railway Company, each for the sum of $1,000, with interest coupons attached. The trial was had before the court, without a jury, on an agreed statement of facts, and resulted in a judgment for plaintiff for the recovery of the bonds sued for. Defendant Hattie F. Kauffman appeals.
The agreed statements of facts on which the cause was tried, is as follows:
"1. Under the date of the 3rd day of January, 1911, the Oklahoma Railway Company made, issued, executed and sold a series of its bonds, with interest coupons attached, secured by deed of trust of that date upon certain of its properties. A true copy of this deed of trust is hereto attached as a part of this agreed statement of facts; and the terms of the bonds and coupons so issued and sold by the Railway Company are correctly set forth therein.
"2. The defendant, Hattie F. Kauffman, purchased from the Oklahoma Railway Company, through the Mississippi Valley Trust Company, and became the owner of seven of these bonds, with interest coupons attached, in the principal sum of $1,000 each, numbered 2195, 2196, 2197, 2198, 2199, 2201 and 2202. These bonds and coupons (so far as the latter still remain unpaid and attached to the bonds) are the bonds and coupons in controversy in this case.
"Their date is as above set forth, and their terms are correctly set forth in the copy of the deed of trust hereunto attached.
"3. None of these bonds were ever registered as provided by their terms and the terms of the deed of trust.
"4. In December 1926, the safe in which the bonds were kept by the defendant Hattie F. Kauffman in Champaign, Illinois, where she then resided and still resides, was burglarized, and the bonds and coupons attached were stolen. They have never been in her possession since that date.
"5. About February 28, 1929, Boettger, Newton Company, a firm of brokers in Denver. Colorado, purchased the bonds and coupons attached (no overdue coupons being attached) at their office in the usual course of business from a man named Norris, who had been previously introduced to them and vouched for by one of their clients. They paid Norris $4,384.50 for the bonds, which was a fair price and they had no knowledge or notice that the bonds had ever been stolen or that there was any question as to the title of Norris thereto.
"6. The plaintiff subsequently purchased the bonds and coupons from Boettger. Newton Company and have their title and rights.
"7. After the purchase of the bonds by plaintiff, it had them forwarded to defendant. Mississippi Valley Merchants State Trust Company, trustee under the mortgage, for registration and the report of the theft of said bonds having been made to said trustee, it refused to register the bonds in accordance with plaintiff's request or to return them to plaintiff, and also refused to deliver them to claimant, Hattie F. Kauffman.
"8. The Negotiable Instrument Law as enacted in Missouri is in force in all states whose laws are material to be considered in determining the rights of the parties to this case.
"9. The Mississippi Valley Merchants State Trust Company is a mere stakeholder of the bonds and coupons; it being the purpose of this action to determine the ownership and right to possession of the bonds and coupons as between the plaintiff and the defendant. Hattie F. Kauffman and, therefore judgment for damages if any, and costs shall be for or against the plaintiff or the defendant. Hattie F. Kauffman, but not for or against the Mississippi Valley Merchants State Trust Company."
The bonds in controversy are each in the following form:
"Oklahoma Railway Company, a corporation created and existing under the laws of Oklahoma, for value received, promises to pay to the bearer hereof, or if this bond be registered, to the registered holder hereof at Mississippi Valley Trust Company, St. Louis, Missouri or, at the option of the holder, at Harris Trust and Savings Bank, Chicago, Illinois. One Thousand Dollars in gold coin of the United States of America, of or equal to the present standard of weight and fineness on the first day of January, 1941, and to pay interest thereon from the first day of January, 1911, until paid, at the rate of five per cent per annum, payable semi-annually, on the first days of July and January in each year in like gold coin at said Mississippi Valley Trust Company or at the option of the holder of coupons, at said Harris Trust and Savings Bank, such interest until the maturity hereof being payable only upon presentation and surrender of the respective interest coupons hereto annexed evidencing such interest.
"All the aforesaid payments upon this bond, both principal and interest, shall be made without deduction for any tax or taxes, charge or charges hereon or on the debt or interest evidenced hereby which the said Oklahoma Railway Company its successors or assigns or anyone acting on behalf of it or them may be required to pay, deduct or retain therefrom under any present or future laws said Oklahoma Railway Company hereby covenanting to pay and discharge any and all such tax or taxes charge or charges.
"This bond is one of a series of twelve thousand bonds of like denomination, tenor and date, numbered consecutively from 1 to 12,000 both inclusive, the payment of the principal and interest whereof is equally and ratably secured by a deed of trust given by the said Oklahoma Railway Company to the Mississippi Valley Trust Company, of St. Louis, Missouri, as Trustee and bearing even date herewith, which deed of trust has been duly executed, acknowledged and recorded, and to which reference is hereby made for a description of the property rights and franchises thereby mortgaged, the nature and extent of the security thereby created and the terms and conditions upon which said bonds are or may be issued and secured all with the same effect as if the provisions of said deed of trust were herein set forth.
"If default shall be made in the payment of the interest on this bond or in the performance of any of the covenants and agreements in said deed of trust, contained, on the part of the Railway Company to be performed, then the principal hereof may be declared and become due and payable as provided therein.
"This bond may be redeemed from the holder hereof, at the option of said Oklahoma Railway Company, on January 1, 1921, or any interest payment date thereafter, at par, accrued interest and a premium of five per cent (5%) on the principal hereof, in accordance with the provisions of said deed of trust. This bond is subject to call for payment by the City of Oklahoma City in the year 1932, or at the end of any fifteen year period thereafter in case of purchase by said City of that part of the property embraced in said deed of trust then situated in said City.
"This bond shall, in all respects be deemed a negotiable instrument, the title to which shall pass by delivery unless registered, as provided in the form for registration on the back hereof. The registry of the bond shall not restrain the negotiability of the coupons by delivery merely.
"This bond may be registered by Mississippi Valley Trust Company as to payment of the principal, upon the books of the Oklahoma Railway Company kept by said Mississippi Valley Trust Company at its office in St. Louis, Missouri, such registration to be also noted hereon. If registered, this bond shall pass only by transfer on said books, noted also on this bond; but it may be discharged from registration by being so transferred to bearer at the option of each owner.
"This bond shall not become valid unless authenticated by the Trustee, its successor or successors, by execution of the trustee's certificate indorsed hereon but when so authenticated it shall be deemed to be issued and secured by the deed of trust hereinbefore mentioned.
"In Witness Whereof, the Oklahoma Railway Company has caused this bond to be signed in its name by its President or Vice-President and its corporate seal to be hereunto affixed and attested by its Secretary or Assistant Secretary, and has caused the coupons hereto attached to be executed with the facsimile signature of its Treasurer, all as of the third day of January, A.D., 1911."
The coupons attached to the bonds are each in the following form:
"Oklahoma Railway Company, will pay to bearer, upon surrender hereof at Mississippi Valley Trust Company, St. Louis, Missouri, or at the option of the holder at Harris Trust and Savings Bank, Chicago, Illinois upon the first day of ____ A.D. 19__, Twenty-five Dollars ($25) in gold coin of the United States of America, being interest then due on First and Refunding Mortgage Five Per Cent. Gold Bonds of said Railway Company No. ____ all as provided in and subject to the terms of said bond and the deed of trust therein mentioned."
The deed of trust contains, among other provisions, the following:
"No holder of any bond or coupon hereby secured shall have any right as such holder to institute any suit, action or proceeding in equity or at law, on account of any such bond or coupon, or for the foreclosure of this indenture or for the execution of any trust hereof, or for the appointment of a receiver or for any other remedy hereunder, or by reason hereof; all rights of action hereunder and on account of the bonds and coupons hereby secured being vested exclusively in the Trustee."
The negotiability, or not of the bonds in suit, is the sole question at issue here. It is conceded that if the bonds are negotiable respondent is the owner of them and entitled to recover their possession, and that if they are not negotiable the appellant is the owner and entitled to possession of them. Appellant says the bonds are not negotiable because the deed of trust referred to in the bonds precludes any holder from suing on the bonds. Respondent says that the bonds on their face do not make the terms of the bond subject to the provisions of the deed of trust, nor make the provisions of the deed of trust a part of the bonds, but says that the bonds refer to the deed of trust only for a description of the property rights and franchises thereby mortgaged, and the nature and extent of the security thereby created, and that, therefore, the provision of the deed of trust relied on by appellant does not affect the negotiability of the bonds. It will be observed, however, that the reference in the bonds to the provisions of the deed of trust is made not only for a description of the property rights and franchises thereby mortgaged and the nature and extent of the security thereby created but also for the terms and conditions upon which the bonds are issued and secured all with the same effect as if the provisions of the deed of trust were set forth in the bonds. It is difficult to imagine how the terms of the bonds could be more effectually made subject to the provision of the deed of trust relied on by appellant, or how such provision could be more effectually made a part of the bonds, than by the language of the bonds just referred to. The provision says in express terms that no holder of any bond or coupon secured by the deed of trust shall have any right as such holder to institute any suit, action or proceeding in equity or at law, on account of any such bond or coupon, and that all rights of action on account of the bonds and coupons are vested exclusively in the trustee. Surely this provision is one of the terms or conditions under which the bonds are issued, just such a provision as is in express terms called into the bonds with the same effect as if set forth therein.
Moreover, the coupons which are part and parcel of the bonds (St. Louis-Carterville Coal Co. v. Southern Coal Mining Co., 194 Mo. App. 598, l.c. 603, 186 S.W. 1152) are in express terms made subject to the terms of the deed of trust.
Respondent, in its brief, concedes that where a bond otherwise negotiable is by its terms made expressly subject to the terms of another written contract referred to therein, the same is thereby made non-negotiable, and in support of this cites and quotes Brinsmade v. Johnson, 192 Mo. App. 684, 179 S.W. 967, as follows:
"The authorities seem to rule that if the terms of the mortgage are not called into it through apt reference as by reciting that it is subject thereto, or other equivalent words, the bond may not be declared due and thus rendered suable by a mere provision in the mortgage alone to that effect — that is, the bonds are not due for all purposes."
In Reitz v. Pontiac Realty Co. (Mo.), 293 S.W. 382, the bonds under review refer to the deed of trust by which they are secured, and provides that the deed of trust is by such reference made a part of the bonds, and the court held that all the provisions of the deed of trust were thereby incorporated into the obligations of the bond. The deed of trust provides that "no holder or holders of any bond shall have the right to institute any suit, action or proceeding in equity or at law for the foreclosure of the mortgage or for the appointment of a receiver, or any other action, suit or remedy hereunder or hereupon without first giving thirty days notice." It was contended that this language in the deed of trust, having been by the terms of the bonds incorporated into the obligations of the bonds, deprived the holder of the right to sue at common law on the bonds. The court held against this contention, but so held on the obvious ground that the right of the holder to sue at common law on the bonds was not excluded in express terms, or by necessary implication. The court clearly held, however, that if the provision of the deed of trust incorporated into the obligations of the bonds by reference had precluded in express terms, or by necessary implication, the right of the holder to sue on the bonds at common law, such provision would have been effective and controlling. That case is, we think, decisive of the present case, for in the present case the provision of the deed of trust, incorporated by reference into the obligations of the bonds, in express terms excludes the right of any holder of any bond or coupon secured by the deed of trust, to institute any suit, action or proceeding in equity or at common law, on account of any such bond or coupon, and vests exclusively in the trustee all rights of action on account of such bonds and coupons. It would be difficult to conceive of language more effectual than this to exclude the right of any holder to bring an action at law on these bonds or coupons. The language expressly and emphatically excludes the right of any holder to institute any suit or action of any sort on account of the bonds or coupons. Surely this comprehensive language is broad enough to exclude the right of any holder to bring an action at law on the bonds or coupons.
Other grounds urged against the negotiability of the bonds need not be considered.
The Commissioner recommends that the judgment of the circuit court be reversed, and the cause remanded to said court, with directions to enter judgment in favor of the defendants.
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly reversed, and the cause remanded to that court, with directions to enter judgment in favor of the defendants. Haid, P.J., and Becker and Nipper, JJ., concur.
REPORTER'S NOTE: Writ of Certiorari in the foregoing cause was denied by the Supreme Court, November 17, 1931.