Opinion
08-06-1895
BECHTOLD et al. v. READ et al.
Edwin R. Walker, for complainants. Mark R. Sooy, for defendant Read. Walter Barrows, pro se. Charles E. Hendrickson, for defendant Lippincott.
Bill by Henry Bechtold and others against Nathan S. Read and others for an accounting. Heard on defendants' exceptions to the second report of Carroll Robbins, master.
For former reports, see 22 Atl. 1085, and 28 Atl. 264.
Edwin R. Walker, for complainants. Mark R. Sooy, for defendant Read.
Walter Barrows, pro se. Charles E. Hendrickson, for defendant Lippincott.
BIRD, V. C. I think exceptions 1, 2. 3, and 4 filed by Read and Barrows should be overruled. With respect to the insufficiency of proof as to the conveyance of the Babington lot to Lippincott, I am very free to say that, if there be any question as to that, the defendant Lippincott should be permitted to offer the original deeds. I am well satisfied that this would have been done at the hearing before the master if there had not been a misunderstanding between counsel on this point. I say "misunderstanding" for the purpose of avoiding the possibility of a conclusion that the defendant Barrows purposely said or did anything to mislead the counsel of Lippincott. I only mean to say that the original deeds would undoubtedly have been produced if there had not been a belief on the part of the counsel of Lippincott, from what passed, that the production of such original deeds was waived.
The fifth exception must likewise be overruled. The master has followed the directions in the decree of the court as amended. And this is strictly in harmony with the views of the court as expressed in its conclusions before the first reference to the master. The question here involved was so thoroughly sifted by counsel that I supposed nothing more could possibly be said respecting the rights or obligations of the parties; but on the presentation of this exception it was insisted that the Read bond and mortgage were given as a defeasance simply, and without any reference to any other consideration. This view seems to have arisen from the fact that the testator passed other titles, and accepted other bonds and mortgages, for very much larger sums than the property conveyed was worth, and that such other mortgages were only given as defeasances, and were so treated afterwards by the executors. I cannot recall that there was any hint that this should properly be applied to the Read bond and mortgage upon the hotel property. If it were so, it is strange indeed Read did not protect himself thereby. It is equally strange that he did not make the fact known to his coexecutors. Indeed, it is most remarkable that he should allow the bond and mortgage to be appraised at their full face value, charging himself therewith, as he did, if the only consideration therefor was the title to the hotel property, with the secret understanding that it should be conveyed to the testator. I cannot but repeat that it is a most extraordinary thing that these executors, after having appraised this bond and mortgage at their face value, should make a private sale of them for more than $2,500 less than their face value, after having acknowledged by their assignment the receipt of the full amount due thereon according to their face value; especially when the practice in such cases in this state has always been to offer such securities at public sale, or to foreclose them and sell the property mortgaged for the best price at public vendue, or to invoke the aid of the court and secure its direction before trustees venture on such sacrifices.
I can discover no ground for sustaining the sixth exception. Catherine Bechtold made no claim of this character in her lifetime. During all these years prior to the filing of this bill and during all the agitation since the filing of the bill this question has not until now been presented. The claim that the transfer of any of these securities was made to her because of the gift of them to her by the testator in his will has not the slightest evidence to support it. There is neither written nor oral testimony to the effect that the widow made any claim thereof, or that the transfer was made to her because the will so directed, or that she so demanded. But Lippincott also files an exception to this branch of the master's report, under which the liability of the respective parties and the extent or amount of that liability may be said to be fairly opened for review. It is very clear from what I have heretofore said respecting the Hartley and Gaskill lots that one or both of these executors is or are liable for the amount of money actually received with interest or for their full value. The master has found that they are both liable. On this point it is very clear there is great room for debate, and, upon consideration of all the facts in the case, I think the weight of testimony is so strongly against the conclusions of the master as to their joint liability that I will be justified in setting aside the report to the extent that in the first instance Read should be held liable, and, in the case of inability to collect the amount due from him, that in the second place Lippincott should be required to respond. Read received the profits of the transaction respecting this land; but Lippincott was equally responsible with Read for the direction which was given to the title, enabling Readto accomplish what he did through his wife. Nothing would be more dangerous than to excuse a trustee who should join with his cotrustee in conveying a title without consideration in such a manner as to permit such cotrustee afterwards to reap large profits from his ability to dispose of such title. The sales of the various Hartley and Gaskell lots are indicated in Schedules F and G of the master's report, together with the various sums received by Read as consideration therefor. These items will be the amounts with which Read must be charged, together with interest thereon from the date of such conveyances.
With respect to the Schwabler lots, mentioned in the ninth exception of the defendants Read and Barrows, it may be said that it does not appear, except by the assertion of counsel, that the $2,000 which it is admitted was paid by Read to Schwabler on the conveyance to the latter by Read and Lippincott was afterwards, when it was discovered that Schwabler had not a perfect title, returned to Schwabler by Read. If I have overlooked the testimony on this point, I would be very glad to have my attention directed thereto, or, if such testimony does not exist, and it be nevertheless the fact, I am willing that it shall still be offered. Otherwise the exception will be overruled.
The tenth exception, I think, should be overruled.
As to the eleventh exception, It has always appeared to me that Read should account for the profits of the sale of these lands. I never understood that the action of counsel or their clients could be construed as meaning anything else.
The first exception filed in behalf of the defendant Lippincott must be overruled for reasons given in my conclusions filed on the 16th day of August, 1893 (28 Atl. 264), and for additional reasons given in answer to the fifth exception filed by Read and Barrows. As to the second, third, and fourth exceptions in behalf of Lippincott, I think the master fully observed the direction of the court, and consequently these exceptions must be overruled.
After again and again reviewing the complicated questions of fact, as well as of equitable right, between the parties to this controversy, I can discover no other way of adjusting those rights at all in harmony with the practice of this court than as indicated by the conclusions which I have expressed heretofore and hereinabove. I will advise an order accordingly.