140 U.S. 209
11 S.Ct. 786
35 L.Ed. 492
LAWRENCE et al.
May 11, 1891.
John M. Butler, for appellant.
George T. Porter, for appellees.
This case is one of a large number involving litigation growing out of the foreclosure of a mortgage upon the Toledo, Cincinnati & St. Louis Railroad of Ohio, Indiana, and Illinois. The facts necessary to an understanding of the question at issue, briefly stated, are as follows: The Frankfort & Kokomo Railroad was a road of about 25 miles in length, running from Frankfort to Kokomo, Ind. On the 1st of January, 1879, the company owning the road issued 200 bonds of $1,000 each, bearing 7 per cent. interest, payable semiannually, and due in 30 years, and, to secure the payment thereof, executed a mortgage upon its property to the Farmers' Loan & Trust Company. Subsequently, by consolidation, that road became a part of the road of the Toledo, Cincinnati & St. Louis Railroad Company of Indiana and Illinois. On the 23d of July, 1881, the latter company issued 3,000 bonds of $1,000 each, bearing 6 per cent. semi-annual interest, and due July 1, 1921, and, to secure their payment, executed to the Central Trust Companyof New York and Thomas A. Hendricks a mortgage on that portion of its road running from Kokomo, Ind., to East St. Louis, Ill. Two hundred of these bonds were set aside to trustees, to be exchanged at par value for the original Frankfort & Kokomo bonds. One hundred and thirty of those bonds were so exchanged, the holders of the other 70 of them refusing to make the exchange. Default having been made in the payment of interest upon the new bonds, the mortgage was foreclosed, the foreclosure decree being entered November 12, 1885. By this decree it was found that 70 of the Frankfort & Kokomo bonds were outstanding, and that there was due thereon the sum of $85,108.12; and it was decreed that that sum should be paid out of the proceeds of the foreclosure sale next after the payment of the court costs and master's fees. The foreclosure sale took place December 30, 1885, and the appellant herein, Sylvester H. Kneeland, became the purchaser of the entire line of road from Kokomo to East St. Louis. The sale was confirmed on the 5th of February, 1886, and on the 10th of March following a deed was executed and delivered to the purchaser. Under an order of court of December 30, 1885, it was provided that all claims which should be filed in court against the railway, or the fund arising from the sale thereof, should be referred to W. P. Fishback, a master of the court. On the 23d of July, 1886, the master reported that the appellees herein, Lawrence Bros. & Co., had produced six Frankfort & Kokomo bonds, (numbers given,) with coupons attached; that said bonds were owned by S. Newton Smith, but were held by Lawrence Bros. & Co. as collateral security for advances made by them to Smith; and that there was due on said bonds the sum of $8,883.16, to which should be added $1.26 per day from July 22, 1886, until they should be paid. Exceptions were filed to the master's report by the appellant, but they were overruled, the report was confirmed, and a decree was rendered in accordance therewith. An appeal from that decree brings the case here.
The ground upon which payment of these bonds was resisted, and, therefore, the ground upon which this appeal is based, is that they are not part of the 70 bonds that were not exchanged for Toledo, Cincinnati & St. Louis bonds, but are part of the 130 bonds that were so exchanged, and have been, therefore, fully paid and satisfied. The evidence before the master, and which is set out in this record, shows that the appellees, as brokers, purchased these six bonds for Smith from George William Ballou & Co. Ballou & Co. had obtained possession of three of the bonds from Edward Le Conte, giving him in exchange three Toledo, Cincinnati & St. Louis bonds, two income bonds,—one of $1,000, and the other of $500,—and thirty shares of stock in the Toledo, Cincinnati & St. Louis road. Where they obtained the other three the record does not show. The argument for the appellant is that Ballou & Co. were the financial agents of the Toledo, Cincinnati & St. Louis road, and that, therefore, it must be presumed that the Frankfort & Kokomo bonds held by them were a portion of the 130 bonds that had been exchanged for a like number of Toledo, Cincinnati & St. Louis bonds, and were, therefore, fully paid and satisfied. We cannot assent to this proposition. The record shows that the Central Trust Company of New York and Thomas A. Hendricks were the agents of the Toledo, Cincinnati & St. Louis road for the exchange of 200 of its bonds for the Frankfort & Kokomo bonds; and nowhere in the record is there any intimation that Ballou & Co. had any connection whatever with such agency. Admitting, as is claimed by the appellant, that Ballou & Co. were the financial agents of the Toledo, Cincinnati & St. Louis Company, it does not follow by any means that they might not have been in the bona fide possession of a portion, or even all, of the 70 unexchanged Frankfort & Kokomo bonds. There was certainly nothing to prevent Ballou & Co. from purchasing all of those 70 bonds from the holders of them and disposing of them as they saw fit. The 3 bonds which they obtained from Le Conte cannot be considered as having been exchanged for a like number of Toledo, Cincinnati & St. Louis bonds at par value, for they not only gave Le Conte a like number of bonds, but, as an inducement to such transfer, gave him, in addition, 2 income bonds amounting to $1,500, and 30 shares of stock. Such a transaction is more in the nature of a negotiation and sale than an exchange, as contemplated by the original arrangement for an exchange of bonds. In fact, there is nothing whatever to show, or even to indicate, that these 6 bonds were not part of the 70 bonds that were not exchanged, but were given a priority of lien by the foreclosure decree. On the contrary, the best of reasons exist for holding that they were not part of the 130 bonds; for, according to the statement of counsel for appellant, (which is borne out by the record in Kneeland land v. Trust Co., 136 U. S. 89, 10 Sup. Ct. Rep. 950,) those 130 bonds were taken up and canceled, whereas these 6 bonds do not appear to have ever been canceled. They must have been, therefore, a part of the 70 bonds. The evidence shows clearly that Smith was a bona fide purchaser of them, and it does not show that the appellees are not bona fide holders of them. Coupon bonds like those in suit, payable to bearer, pass by delivery; and a bona fide purchaser of them before maturity takes them freed from any equities that might have been set up against the original holders of them. The burden of proof is on him who assails the bona fides of such purchase. Murray v. Lardner, 2 Wall. 110, 121, and cases there cited. Tested by this rule, the appellant's case must fail. As already stated, there is nothing to show that these 6 bonds are not part of the 70 unexchanged Frankfort & Kokomo bonds, and nothing to show any mala fides on the part of Smith and the appellees in obtaining possession of them. Decree affirmed.
BRADLEY, J., was not present at the argument, and took no part in the decision of this case.