In Rogers v. New York Texas Land Co., 134 N.Y. 197, a committee of bondholders who were given land for their bonds formed a plan and made a report, pursuant to which a corporation was organized to take and hold the lands.Summary of this case from Bond v. Atlantic Terra Cotta Co.
Argued April 21, 1892
Decided October 1, 1892
James C. Carter and Julien T. Davies for appellants.
Noah Davis and Thomas G. Shearman for respondents.
The plaintiffs claim that the land company is the trustee of the scripholders to the extent of three-fourths of the lands and its proceeds, and that it was a breach of trust to make the scrip dividend of $1,125,000 to the stockholders, as it in effect gave away more than 500,000 acres of land through the purchasing power of the scrip thus wrongfully divided. They further claim that the cash dividend of $450,000 was also a breach of the trust, as it amounted to a donation to the stockholders of $337,500 in money that equitably belonged to the scripholders.
The defendants deny that any part of the land was held in trust, and claim that the rights of the scripholders are confined to the privilege of using scrip to purchase land, and that as neither the plaintiffs nor any of the scripholders have been denied that right, they have no cause of action against the company or its directors. In taking this position, the defendants rely on the scrip certificates as the origin and boundary of the rights of the scripholders, while the plaintiffs, in support of their position, contend that the report of the purchasing committee, setting forth a general plan of operations, including as a part thereof the issue of scrip, is the foundation of the scripholders' rights.
In order to determine whether the certificates created and defined all the rights of their holders, it is necessary to look into the acts which brought them into existence, and to ascertain the object for which they were issued. The fundamental fact is the debt of the bondholders against the railroad company. They lent their money to that corporation and took its second mortgage bonds as security. The bonds became due and were not paid, and the road, being unable to pay them in money, conveyed land in payment, which was accepted in the place of money, because nothing better could be had. Although their claim against the railroad was thus satisfied, their debt was not collected, but was converted into land with the expectation of turning the land into money, and in that manner collecting the debt. The best method to accomplish this was a serious problem. Several hundred bondholders, who did not want land, but wanted money, had suddenly and through necessity become the owners of vast tracts of land, amounting to millions of acres, mainly unproductive and even unsurveyed, spread over fifty counties in a distant state. Partition was impracticable for many reasons, but chiefly because they did not want the land, divided or undivided, but wanted all the money that the land would bring when sold to the best advantage. An immediate sale was out of the question, because such an immense body of land could not be thrown upon the market all at once, without depressing prices and causing serious loss. Good management required that competition between owners in selling should be avoided, and that the common interest should be continued. It was necessary to make surveys, plant maps, establish local agencies and proceed by a general and comprehensive plan to dispose of the land gradually, without forcing the market. A central agency was needed, so organized as to avoid conflict of interests, and to possess supreme and irrevocable power to manage and sell. As the bondholders could not, with convenience or advantage, sell their interests or raise money on them, situated as they were, it was desirable that some means should be devised to represent, proportionately, each bondholder's rights in the common property, and enable him to sell, mortgage or pledge it without expense or sacrifice on his part, and without injury to his associates by the sale of land in competition with them. Such was the situation and the needs of the bondholders when they met to take action with reference to the land, and in the light of which that action must be considered. What did they do? They first gave general directions to the purchasing committee to prepare and report a plan by which they could, if possible, realize in money the par value of their bonds and coupons out of the land. Thus they treated their debt as still existing and as the basis of all action, and their primary purpose, as thus declared, was to collect that debt out of the land, the only means then left. They next gave specific directions to the committee to prepare and report a plan for organizing a corporation to which the land should be conveyed, and in which, in consideration of such conveyance, they should, individually, have interests that should represent, and ultimately, if possible, realize in money the par value of their bonds.
These brief instruction show an intelligent comprehension of the situation, and an ingenious adaptation of means to the single end in view, which was to collect their debt by converting the land into money to the best advantage and thereby to "realize" in money the amount of their bonds.
The committee, acting within the lines of their instructions, "sought to contrive some method by which the land should be so managed and disposed of as to secure to said bondholders, ultimately, the par value of their bonds and coupons, and * * * to that end contrived a scheme for a corporation." The collection of the debt was uppermost in their minds also, and the formation of the corporation to act as land agent, with the powers and on the grand scale required, was regarded as the best available method of accomplishing that object. Accordingly their report embraced the creation of a corporation to take title to the land, with a capital of $1,500,000; ten per cent to be paid in cash, because the law required it, and the remainder in land "to that amount," meaning in land worth the amount unpaid upon the stock. It provided for the issue of scrip to the extent of $6,000,000, entitling the stockholders to "an amount of lands" corresponding to the difference between the capital and the ultimate value of all the land, estimated at $7,500,000 on the basis of the selling rate fixed by the state of Texas for its land of similar character. Each holder of a bond with all coupons attached, amounting to $1,500, was to receive $300 in stock and $1,200 in scrip. Upon this basis, as the committee reported, the land would "ultimately be worth the entire amount of the outstanding bonds and coupons," thus proceeding on the theory, for the purpose of the proposed arrangement, that the bonds were still in existence and unpaid, and that every effort should be in the direction of collecting the debt they represented out of the land. The scrip was "to be receivable in payment of seventy-five per cent of the price of the land at the regular selling rates, with an option to the company to retire the scrip from time to time by the payment of its par value and liberty to purchase it out of the company's surplus funds under public notice and sealed proposals at the lowest prices at which it may be offered." The bondholders unanimously adopted the report which thus became their plan for the management and disposition of the land. The defendant corporation was accordingly organized, having, as one of its expressed objects, the purchase and sale of land in the state of Texas, and one-fifth of all the land was conveyed to it in consideration of the capital stock, and four-fifths in consideration of the land scrip. The scrip, as issued, did not contain the provision mentioned in the report that the company should be at liberty to purchase it out of its surplus funds under public notice and sealed proposals.
Thus the land, which was regarded by all concerned as standing for the debt of the bondholders against the railroad company, became the basis of the capital, the business and the obligations of the corporation to which it was conveyed. That corporation was charged, by the knowledge of its directors, the source of its title and the consideration paid for the land, with notice of the proceedings of the bondholders which led to its existence, as well as their object in causing it to be organized. ( King v. Barnes, 109 N.Y. 267, 288; Bommer v. American Spiral, etc., Co., 81 id. 468, 473; Goddington v. Davis, 1 id. 186; Rogers v. N.Y. Texas Land Co., 17 N.Y.S.R. 131.) The directions given to the purchasing committee, the report of that committee, the resolutions adopting it and the separate conveyances of the land are to be read in connection with the certificates and form a part thereof as much as if embodied in or indorsed upon them. ( Boardman v. Lake Shore M.S.R.R. Co., 84 N.Y. 157, 172; Wilson v. Randall, 67 id. 338; Rogers v. Smith, 47 id. 324; Hathaway v. Payne, 34 id. 92, 100; Wright v. Douglass, 7 id. 564, 573; Stow v. Tifft, 15 Johns. 457; Bailey v. Railroad Co., 17 Wall. 96, 106; 1 Greenl. Ev. §§ 277, 283, 286; 2 Parsons on Con. 66, 68.)
The certificates were mere instruments of convenience to aid in carrying out the prior contract made by the bondholders with each other. That contract was made by adopting the report of the purchasing committee, and it constituted the only authority that the trustees had to convey the land to the corporation defendant. As it contained nothing inconsistent with the statute under which the corporation was organized, the contract became binding upon it, because, with complete notice of all the facts, it took title under it. All the provisions relating to that part of the land conveyed for the scrip became its own obligations, which it could not lawfully evade or violate. ( Edwards v. Grand Junction Ry. Co., 1 Mylne Cr. 650, 672; Stanley v. Chester Birkenhead R. Co., 9 Sim. Ch. 264; Wood v. Whelen, 93 Ill. 153; Low v. Conn., etc., R.R. Co., 46 N.H. 284; Stanton v. N.Y. E. Ry. Co., 59 Conn. 272; Whitney v. Wyman, 101 U.S. 392; Angell Ames Corp. § 804; Green's Brice Ultra Vires, 462.)
The bondholders were the promoters of the land company. Being about to form a corporation for an authorized purpose, they made an agreement upon the subject in which they provided for benefits to be conferred upon it and burdens to be assumed by it after its organization. While it could have refused, when it came into existence, to accept the one or to be bound by the other, it could not accept the advantages and then refuse to assume the obligations. By accepting title to the land it adopted and ratified the agreement entered into by all its stockholders, and thereby voluntarily made itself a party thereto and became bound thereby. The adoption by the land company of the contract between the bondholders was a reasonable means of carrying into effect its authorized objects, and, after knowingly receiving the benefit of the arrangement, "it cannot be permitted to deny that it agreed to assume the corresponding burdens." (Morawetz on Corporations, § 548, and cases cited.) There can be little doubt as to the intention of the promoters that the corporation, when formed, was not only to become a party to the agreement, but was to be the chief actor to carry it into effect. They created it exclusively as an executive agent to effect their purpose, and when that purpose is completely accomplished by the sale of all the land and the proper application of the proceeds, the object of the corporation will have been fully attained.
The land company was not in the position of a bona fide purchaser as to the land represented by the scrip, because it paid nothing therefor, although it assumed certain duties with reference thereto. By independent conveyances one-fifth of the land was conveyed to make up its capital and four-fifths for scrip, which was treated as representing a debt to be collected, or at the rate of a dollar of scrip for a dollar of debt. This correspondence in amount was not accidental, but was the result of the carefully matured plan embraced in the bondholders' contract. Express provision was made to convey land enough to pay up the subscriptions for stock and implied provision for the conveyance of the remainder as the basis upon which scrip was to be issued. This indicates that one-fifth of the land belonged to the corporation absolutely, because it had paid for it, and that four-fifths did not belong to it absolutely, or at least not beneficially, because it had not paid for it, but held the legal title for the benefit of the scripholders, to dispose of it and collect, if possible, so much of the debt as the scrip represented. In order, however, to provide for expenses, and perhaps for dividends also, the certificates limited the beneficial interest of the holders to three-fourths instead of four-fifths. There was also the further limitation in aid of dividends that when their scrip was paid without interest their claim upon the land, as scripholders, absolutely ceased. Unless it was the intention to devote this proportion of the land to the benefit of the scripholders, until they were paid, why was not all the land conveyed in payment for stock, as scrip could then have been issued with all the attributes that the defendants claim the scrip in question possessed? No increase in the amount of stock would have been necessary and the absolute ownership of so much land would have extended the credit of the company proportionately. There was no reason for making the stock the consideration for one-fifth and the scrip the consideration for four-fifths of the land, unless it was intended to make the obligations assumed by the company in issuing the scrip a charge upon the proceeds of the land. Nor was there otherwise any reason for giving to the company the liberty in advance, as part of the general scheme, to buy in scrip out of its surplus funds. This right is conceded to exist, although it is not so stated in the certificate. What is meant by the expression "surplus funds," as thus used? All funds were to come out of the land, and, except the slight income from leases, from the sale of land. When land was sold, one-fourth of the purchase-price had to be paid in cash. That represented the stockholders' interest, and belonged to the corporation absolutely to use in payment of expenses or dividends, or for any lawful purpose. The remainder of the purchase-price could be paid either in scrip or cash. When payment thereof was made in scrip, it was ipso facto canceled, and a proportionate part of the bondholders' debt was discharged. When payment of the balance was made in money, if it belonged to the company absolutely with no charge thereon, there would have been no necessity of providing that the company might use it to buy scrip, for it would have had that right anyway. ( City Bank of Columbus v. Bruce, 17 N.Y. 507; Hubbell v. Blakeslee, 71 id. 63; Vail v. Hamilton, 85 id. 453, 457; Barry v. Missouri, etc., Ry. Co., 34 Fed. Rep. 829, 833.) If, however, there was a charge upon it for the benefit of the scripholding interest, express permission would be required in order to lawfully use it for that purpose. From the fact that the company did not need permission to use what belonged to it, but did need permission to use what did not belong to it, the inference is permitted that the words "surplus funds" have reference to money that was regarded as belonging to others, or to what was left after deducting from the proceeds of cash sales the one-fourth belonging to the company. No other meaning as reasonable or satisfactory has been assigned to this expression, when the circumstances under which it was used are taken into account. ( Rogers v. N.Y. Texas Land Co., 17 N.Y.S.R. 131, 136.)
The assent, obtained when the scheme was adopted, that the company might use a certain fund as its own, necessarily implies that the fund was not to be its own, but was to belong to the scripholders. It would have been strange if the bondholders, led as they were by men of the clearest insight, in adopting a plan of operations that obviously contemplated a separation in the ownership of stock and scrip, had provided for consent in advance by the scripholders that three-fourths of the proceeds of cash sales could be used for a special purpose, unless that consent was considered necessary. It could not have been considered necessary unless the money that the consent referred to was intended to be held for the benefit of the scripholders. If it was to be so held, it constituted a trust fund, and if a trust existed as to three-fourths of the proceeds of cash sales, it existed as to three-fourths of the proceeds of all sales. It is true that no trust was created eo nomine, but it is not necessary to use the word "trust" in order to create one. ( Fisher v. Fields, 10 Johns. 495, 505; Hathaway v. Hathaway, 37 Hun, 265, 267; 1 Lewin on Trusts, 109; Hill on Trustees, 101; Perry on Trusts, § 82.)
The nature of the relation of the land company to the scripholders, as set forth in the contract between the bondholders, their object in making the contract, the peculiar circumstances surrounding the parties when it was made, the separate conveyances of the land and the consideration of each, determine whether there was a trust or not. When land of great value is conveyed for no substantial consideration, and yet with no intention of making a gift, the probabilities favor the existence of reserved rights in the nature of a trust and slight evidence as to the intent of the parties will suffice to establish one. In this case land worth millions was conveyed to a grantee created at the time by the grantors expressly for the purpose of taking the title in their interest and yet it is alleged that it was an absolute sale and that the consideration was the privilege of buying back three-fourths of the four-fifths so transferred, at a rate to be fixed by the grantee. But the mind at once rejects such a transaction as incomplete and asks, "What else was there to it? What was the object? What were the circumstances? What did the parties do and say beforehand? What led up to the conveyance of the land?" When these questions are fully answered, it appears that the grantee was charged in advance with the performance of active and substantial duties with respect to the management and disposition of the land for the benefit of the bondholders, who were virtually the grantors. The trust sprang out of the situation, the contract, the transfers and the general purpose. The land company was to act as a land agent, holding the title for convenience in transfer and control. The bondholders organized it for this purpose. They created it as a servant, not as a master. They did not want it as a means of investing money at a profit, but as a means of collecting an investment previously made. They conformed to the statute by giving it capital, paying money and conveying a given quantity of land for that purpose. By another deed they conveyed much more land to it. For what purpose? Was it for the privilege of buying back a part by giving all that they received for the whole? Was it merely for the privileges set forth in the certificates? Do reasonable men part with property on such conditions?
We think that their purpose is clearly indicated by what they said and did, interpreted in the light of the circumstances surrounding them at the time. They intended that the land company should hold one-fourth of the land as its own and three-fourths in trust, to sell for the benefit of the scripholders until they were paid the face value of their scrip, without interest, when the remainder was to belong absolutely to the company. They thus made adequate provision for the protection of both stockholders and scripholders, whose interests, although identical at first, were to become separated and relatively unequal as soon as stock and scrip were held in amounts differing from the basis of issue. This they had in contemplation and to facilitate it, made the scrip so that it could become negotiable by manual delivery. There was no conflict of interest between the stockholders and scripholders, because each class received its due proportion of the proceeds of any sale of land, whether large or small. One-fourth, always in money, went to the corporation for the benefit of its stockholders, while three-fourths, either in money or surrendered scrip, went to the corporation for the benefit of the scripholders the scrip to be canceled and the money to be held or used in their interest. Without competition between those interested, there was every inducement to sell as rapidly and for as high a price as possible, for in this way the corporation would make the most money for itself and the scripholders would be benefited proportionately. Moreover, after the scripholders were paid the face value of their scrip, all that was left of land, or proceeds of land, would go to the stock-holding interest, which would then become sole and supreme, because the trust obligation would have been discharged. Ample provision was made to get rid of the scrip by buying it in for cancellation at such prices as might be agreed upon, as well as by redeeming it for cash at par and yet the corporation was not burdened with the obligation to redeem, except by applying the fund devoted to that purpose derived from sales of land wholly for cash. The two interests were so nicely adjusted that prosperity or adversity came alike to each.
There was no inducement to sell at a sacrifice, for the loss fell upon the company, in the same proportion that it did on the scripholders. There was no opportunity for favoritism, or for discrimination in favor of one interest against the other because what helped or hurt one, was reciprocal as to the other. Whether land was paid for in cash or scrip was equally immaterial to either interest, as each was benefited in the proper proportion. As thus interpreted the scheme was simple, safe and admirably adapted to work out the great object that the bondholders had in view from the outset, which was to collect their debt out of the land. As we read the words of the contracting parties and look upon their acts, no other construction is reasonable or natural.
On the other hand singular results follow the interpretation contended for by the defendants. It makes inevitable a conflict between the stockholding and scripholding interests by holding out a constant inducement to the former to sacrifice the latter. It subordinates three-fourths to one-fourth. It furnishes no adequate protection to the scripholder and is inconsistent with the object, predominant from the outset, of collecting the entire debt of the bondholders out of the land. It breaks up the common interest and introduces discord where there should be harmony. More significant than all, it permits the corporation, which was formed to serve the interests of both stockholders and scripholders, to sell all of the land in bulk for cash and to pay out the proceeds in dividends to its stockholders. Conceding that the scripholders might have a remedy for such an act, as against the corporation it would be worthless, and as against the directors, it might be. Considering the object that the bondholders had in view, is it probable that they devised such a plan or made such a contract?
The purchasing committee expressed the expectation in their report that the stock would pay regular dividends at an early day and that the stock would ultimately be worth par. Why did they not use "certainty" instead of "expectation," if the proceeds of all the cash sales, the three-fourths as well as the one-fourth, could lawfully be used in payment of dividends? On that theory could there have been any doubt as to liberal dividends from the start? But, it is said, the scripholders could protect themselves at any time by taking land for their scrip. That is true and it is the only absolute right conceded to them by the defendants, but what was it worth to men who went into the scheme to collect a debt, not to buy land? What would it be worth when all the land was gone? What would it be worth after the scrip had been diluted by repeated reissues until there was not land enough to satisfy its requirements? It was doubtless one object of the arrangement to encourage scripholders to accept land for scrip, but it was not intended to compel them to do so, although that would be the natural result of the construction contended for and the policy pursued by the stockholding interest.
It is argued that the existence of a trust would have defeated the whole scheme by spreading a lien over all the lands and making them unsalable, but a trust to sell and distribute, which was the object of the trust in question, has no such effect. It enables the trustees to give a perfect title to the land and fastens a lien upon its proceeds. "It is a universal rule," says Mr. Pomeroy, "that the trustee's estate and power over the subject-matter are commensurate with the duties which the trust devolves upon him and are sufficient to enable him to discharge all those duties." (Pom. Eq. Jur. § 991.) "In all instances," he continues in the next section, "where the trust is to sell the corpus of the property and to distribute the proceeds * * * the beneficiaries plainly acquire no proper estate in the original trust fund prior to its sale; their right and interest attach to the proceeds of this fund, which are to be paid to or distributed among them." Thus the land company could convey the land, freed from the trust, confer an unimpeachable title upon the purchaser and hold one-fourth of the proceeds for its stockholders, unaffected by the trust, and three-fourths in trust for the scripholders. In so doing it would not exceed its corporate powers, because it was authorized by its charter, which conformed to the statute (L. 1875, ch. 611, § 1), to purchase and sell lands and it purchased one-fourth of the lands absolutely and three-fourths subject to the performance of a trust and after the trust was performed and the scrip was out of the way, all that remained of the three-fourths was to be its absolute property. It was a purchase by assuming a trust obligation as the method of payment. It was a profitable purchase, for while the outstanding scrip amounts to less than one million of dollars, the value of the land unsold is nearly three millions. This does not take into account the unauthorized dividend in stock and scrip, amounting to more than the face value of the stock. In 1886, when one of the plaintiffs bought his scrip at 58, stock was selling at 187.
The threatened danger of loss by forfeiture of a part of the lands under the statutes of the state where they were situated, did not enlarge the powers of the directors of the land company, although it should be taken into account in considering their motives. The rights of the scripholders were fixed by contract and they could not be changed or destroyed even by acts done with an intention to save the beneficiaries of the trust from loss. Possibly the forfeiture could have been prevented in some other way, as by reducing the selling rates of the land in danger, so as to stimulate immediate sales, or by some method other than that pursued, which, as it benefited the stockholders to the same extent that it injured the scripholders, may have affected the judgment of those whose personal interests were identified with the former rather than the latter.
The suggestion that what the scripholders lost, as such, they gained as stockholders would be true if all held stock and scrip in the same proportion that it was first issued, but such is not the case. While it may be true as to one of the plaintiffs, he properly refused to accept the unauthorized dividend, because he had no right to it as long as there were some scripholders who owned no stock and others who owned a relative excess of scrip. It cannot be claimed that he has sustained no injury, because he rejected an offer made in violation of law.
The complaint is properly criticised as insufficient in some respects, but as an answer was served, a trial had and every essential fact not only proved but found by the court, the plaintiffs were entitled to any relief consistent with the case made by their complaint and embraced within the issues. (Code Civ. Pro. § 1207; Hemmingway v. Poucher, 98 N.Y. 281; Wetmore v. Porter, 92 id. 76; Murtha v. Curley, 90 id. 372; Andrew v. New Jersey S. Co., 11 Hun, 490.) While the complaint is not as full as it should be, still the plaintiffs were entitled to relief upon the facts alleged and if it had been amended so as to conform to the proof, all deficiencies would have been supplied. There was a prayer for general relief and, after an answer has been interposed, any judgment may be awarded that is warranted by the facts proved and consistent with the facts alleged, even if it does not precisely conform to the pleader's theory of the action, provided it is not hostile thereto.
It is claimed that the plaintiffs by consenting that a temporary injunction procured by them in another action brought against the land company as sole defendant, restraining it from reissuing the scrip ( Rogers v. N.Y. Texas Land Co., supra), should be vacated, they in effect consented to the acts now complained of. The order vacating the injunction was made without prejudice to either party, so that the defendant corporation is in no position to take advantage of it. ( Creighton v. Kerr, 20 Wall. 8.) As it does not appear that the directors were misled, or prejudiced by the action of the plaintiffs, or that they relied upon it in their subsequent proceedings, it is difficult to see how they can take advantage of it. The action was not discontinued, but was kept alive as a continued assertion of the right to a permanent injunction and there is neither finding nor evidence that the plaintiffs' consent was given to induce action by the company or its directors, or for any purpose, except to avoid the risk of liability on the undertaking. In thus consenting they did not abandon their right to a permanent injunction after a trial of the action on the merits.
Having decided that a trust existed in favor of the scripholders, we regard our duty upon this appeal as discharged, for it is obvious that the trust was violated by the reissue of the canceled scrip and the gift thereof to the stockholders, as well as by the gift to them of three-fourths of the $450,000 in money received upon the sale of land. It was an unauthorized appropriation of that which had been dedicated to the use of the scripholders and entitled them to relief, but it is unnecessary to now decide as to its nature or extent, as a new trial will be necessary and additional facts may then appear that will have a bearing upon the subject.
The judgment should be reversed and a new trial granted, with costs to abide event.