Opinion
02-01-1899
REINER v. BROWN et al.
James P. Powers and Samuel Schleimer, for complainant. George E. Clymer, for Adolphus Lockwood. McGee, Bedle & Bedle, for Henry C. Brown. Le Roy A. Gibbie, for Clotilda Girardy.
Bill by Freida Reiner against Henry C. Brown and others. Decree for complainant.
Freida Reiner in December, 1894, sold to one Adolphus N. Lockwood 200 shares of the capital stock of the New Jersey Guarantee & Title Company, Limited; the consideration being in part cash, and in part a bond and mortgage of Amelia Lockwood, the wife of Adolphus Lockwood, made to secure $1,600. Prior to this deal, John M. Reiner, the husband of Freida Reiner, had been indebted to Bishop Wigger, who recovered a judgment against him for $1,000, and afterwards served notice of supplemental proceedings upon John M. Reiner, Freida Reiner, and Adolphus N. Lockwood; claiming that the 200 shares belonged to John M. Reiner, the husband, andnot to Freida Reiner. To secure Adolphus Lockwood against the claim of Bishop Wigger, the Reiners agreed to assign the bond and mortgage, which they got from Lockwood as part of the consideration for the $2,000, to one Mathias M. Smith, and to place the said mortgage and the assignment in the hands of Henry C. Brown, in escrow, until Bishop Wigger should establish his claim in a court of the state of New Jersey. Mr. Brown agreed that in case it should be determined to the contrary, namely, that Bishop Wigger had no title, he would reassign to Freida Reiner, but, if the determination was adverse to the ownership of Freida Reiner, he would deliver the same to Mrs. Lockwood. Mathias M. Smith signed on December 19, 1894, a written agreement which embodied these terms. The bond and mortgage were assigned, and the assignment was recorded. The bond and mortgage, but not the assignment, were placed in the hands of Mr. Brown in pursuance of the agreement. The subsequent history of the transaction is that Bishop Wigger has never prosecuted his proceeding for discovery. Mathias M. Smith died on January 10, 1896, intestate, leaving two children, both still infants, and no general letters of administration have been taken out. Clotilda Girardy has been appointed general guardian of the children. Lewis M. Thompson, the clerk of this court, has been appointed administrator ad prosequendam of the estate of Smith, and guardian ad litem of the children. Mr. Brown refused to deliver the bond and mortgage to complainant, and the complainant filed this bill, praying that it may be decreed that Bishop Wigger has no claim upon these shares, that Mr. Brown may be ordered to deliver the bond and mortgage to the complainant, and that the guardian of the infant children of Mathias M. Smith may be decreed to reassign the said bond and mortgage. Bishop Wigger has not answered, and a decree pro confesso has been taken against him.
James P. Powers and Samuel Schleimer, for complainant.
George E. Clymer, for Adolphus Lockwood. McGee, Bedle & Bedle, for Henry C. Brown.
Le Roy A. Gibbie, for Clotilda Girardy.
REED, V. C. (after stating the facts). I think that this court has jurisdiction to settle the question whether Bishop Wigger has any right to pursue the 200 shares of stock on the ground that it is the property of the husband, and not the property of the wife. It does not appear what steps, if any, have been taken in the supplementary proceedings Instituted by Bishop Wigger. From the statement in the bill that these proceedings have been abandoned, which statement, as to Bishop Wigger, must be taken as confessed, the inference is that no receiver was appointed, and therefore no suit has been brought to reach the 200 shares as equitable assets of John M. Reiner, the husband of complainant. Therefore the only way that the complainant could litigate the matter was by filing a bill in this court.
As to the principal question, the evidence leaves no doubt that the shares are the property of the wife. Indeed, a decree pro confesso taken against Bishop Wigger is conclusive as to him, and must be regarded equally so as to those parties whose interest in the bond and mortgage rests entirely upon the decision of the principal question. There should, therefore, be a decree upon this point in conformity with the first prayer of the bill.
This court now having declared that the shares are the property of Freida Reiner, free from any claim of Bishop Wigger or her husband, it follows that the condition of the agreement upon which the shares are to be restored to Mrs. Reiner has come into existence. Therefore Henry C. Brown will be decreed to deliver the bond and mortgage to the administrator ad prosequendam of the estate of Mathias M. Smith.
The administrator ad litem represents the estate of Mathias M. Smith, deceased, for all the purposes of the suit; and one of such purposes is the restoration of these shares to the complainant, which can be accomplished only by a reassignment. The only objection to the reassignment of the bond and mortgage to the complainant is set up by the answer of Clotilda Girardy, the general guardian of the infants. She stated in this answer that Mr. Smith, in his lifetime, presented a claim against Mrs. Lockwood. and expressed a willingness to reassign on payment of this claim. But there is no proof in the case to support this statement in the answer. There is nothing to show the nature of this claim, nor any fact to show its existence. Besides, if there existed such a claim, there is no evidence that the assignment to Smith was by way of pledge or security for the claim, or that there was any agreement that such bond and mortgage should stand as security for any previous claim, or for any future advances. Indeed, the agreement states the purpose to be solely for the security of Mr. Lockwood. The decree therefore must direct a reassignment, and the reassignment should be made by the administrator ad prosequendam.