he may now gracefully retire from the whole thing and quickly return, without let or hinderance, to his erstwhile peaceful pursuits.
The foregoing facts are properly before the court on the motions to dismiss, since they are gathered either from the complaint or from documents mentioned therein and for present purposes are taken as admitted.
It is noted that while the declaration of trust was worded for the benefit of Edith and the children as well as for the settlor Nelson, the provisions for its termination required only the consents of Nelson and the plaintiff. If, therefore, plaintiff and Nelson acted in good faith and in the absence of fraud as against Edith and the children in thus terminating the declaration, they were wholly within their respective rights. It appears however from a reading of the opinion filed in the Chancery Court on March 25, 1942, five days before the filing of the complaint herein, that our plaintiff was on that date found guilty of fraud as against Edith and the children with relation to the very securities with which we are here concerned, and with that stigma he entered this court.
That a speaking motion like a speaking demurrer is valid in this circuit cannot now be denied, Gallup v. Caldwell et al., 3 Cir., 120 F.2d 90, and Victory v. Manning, Collector, 3 Cir., 128 F.2d 415; hence this court has before it the opinion in Chancery from which extracts have been quoted and as well the opinion in Boice v. Boice et al. in the Court of Errors and Appeals, supra, even if their presence could not be spelled out on the face of the record. Indeed, this court may also look to those opinions from a somewhat different angle under the theory of judicial notice. Bowen v. Johnston, Warden, 306 U.S. 19, 59 S. Ct. 442, 83 L. Ed. 445, and cases therein cited, especially Lamar, Ex'r., v. Micou, 114 U.S. 218, 5 S. Ct. 857, 29 L. Ed. 94. So it must, by either approach, be found that our plaintiff came to this court with unclean hands for the reasons stated in the Chancery opinion.
Moreover, the Statute on Interpleader, 28 U.S.C.A. § 41(26), expressly provides that the court will have jurisdiction when it appears that plaintiff has money or property "in his or its custody or possession * * * if * * * the complainant (a) has deposited such money or property * * * into the registry of the court, there to abide the judgment of the court, or (b) has given bond to the clerk * * * as the court or judge may deem proper" to abide the order or decree of this court.
The facts here show that plaintiff has the legal title to certain of the certificates of stock, mentioned in the schedule annexed to the declaration of trust, the physical possession of which he has fraudulently allowed to pass from his control. He has not therefore, nor is he in a position now, to tender the full estate covered by the trust into the registry of this court. Nor can this court rule that the Florida defendants be directed to deposit their respective holdings here since plaintiff's fraud as found by the New Jersey Chancery Court prevents his entrance into this court for equitable relief.
In Metropolitan Life Ins. Co. v. Mason et al., D.C., 21 F.Supp. 704, 706, Judge Maris, in treating of interpleader, said: "Interpleader is a well-established equitable remedy which existed long prior to the enactment of the Federal Interpleader Act. The latter consequently did not enlarge the remedial function of the action, except to the extent to which we shall refer presently, but merely extended the jurisdiction of the District Courts to the cases described in the act. Dee v. Kansas City Life Ins. Co., 7 Cir., 86 F.2d 813." The facts in the above case differ from those in the instant case very materially and the case was reversed in Metropolitan Life Ins. Co. v. Mason, 3 Cir., 98 F.2d 668, but not on the proposition of law above stated and which is taken to be sound. The same view was taken by the 8 Circuit in Klaber et al. v. Maryland Casualty Co., 69 F.2d 934, 106 A.L.R. 617, which holds that it is a remedy available to "disinterested" stakeholders, citing Pomeroy, and further that the plaintiff must "have incurred no independent liability to either of the claimants and must stand perfectly indifferent between them, in the position of a stakeholder." Here the plaintiff has incurred a liability to certain of the defendant claimants as is evidenced by the opinion in Chancery above considered. Therefore he is without right to enter this court.
Question arises as to whether it can be said that our plaintiff had incurred a liability when it appears that between the date when the Chancery opinion was handed down and the date of the entry of a final decree thereon, he resorted to this court. The opinion was filed on March 25th, the complaint was filed here on the 30th, and the final decree in Chancery was entered on April 1st. This was of course fast legwork, but it was not fast enough, because our plaintiff was obliged to carry the opinion of the Chancery Court with him into this court and it clearly fastened a liability on him before the race started. Moreover he was guilty of laches in not moving into this court sooner. He saw fit, in view of the Florida situation and the pending action in Chancery to continue to litigate in the latter court for many months and until a ruling was entered against him. One who seeks equitable relief must be diligent and there is an absence of it here.
An order will be entered dismissing the complaint.
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